By Valerie Protopapas
I have been engaged in a small debate arising from a question on a "list" which chooses not to print whatever response I may post. I sent the information to individuals who asked the question about what source the United States military used for the "Rules of Warfare" in 1861. I also sent copies to the list, but neither my original nor my second post were acknowledged. I did, however, receive a response from a gentleman and he and I have been rather going back and forth on this. The book I quoted with regard to the above was Joseph Fallon's "Lincoln Uncensored," a book with which the gentleman took some issue.
My original response to the question:
For your information:
Acknowledged Rules of War Prior to 1861:
From an e-book by Joseph Fallon based upon the words (print and spoken) of Abraham Lincoln entitled Lincoln Uncensored. Endnote xxi, addresses the subject of what sources for such rules was/were used by the United States military prior to the creation of General Order 100 [the Lieber Code]:
xxi Historically, the government of the United States had adhered to the international law code of the Swiss jurist, Emmerich de Vattel (1714-67), author of The Law of Nations, on the proper conduct of war. As late as 1862, the U.S. Supreme Court in rendering its opinion in the "Prize Cases" cited Vattel. Because of the emphasis it placed on the protection of non-combatants, the Vattel code was repudiated by Lincoln who issued a new law governing warfare that lacked international standing – GENERAL ORDERS No. 100, known as the "Lieber Code" of 1863.
From the outbreak of the Civil War, Lincoln's strategy was to defeat the Confederacy by targeting Southern civilians. One of his first acts was to order a blockade of Southern ports on April 19, 1861 to deny food and medicine, among other items, to civilians. Because such acts violated traditional U.S. military rules of conduct, Lincoln needed a new code to "legalize" his actions. He requested Francis Lieber, a prominent Northern attorney and scholar, and former advisor to Otto von Bismarck, to write it.
Lieber was the prefect choice for this task. The Prussian immigrant was contemptuous of the Constitution. He dismissed the federal system it had established as a "confederacies of petty sovereigns" based on the "obsolete ideas" of Thomas Jefferson. He shared Lincoln's drive to centralize political power in the executive branch of the federal government. They alleged implied powers in the Constitution grant the president in wartime authority to enact legislation as well as to interpret the Constitution -- to deny or suspend constitutional rights as the chief executive sees fit.
The new military code Lieber produced was entitled "Instructions for the Government of Armies of the United States in the Field," but is more commonly referred to as the Lieber Code. A catalogue of 157 rules, it was promulgated by Lincoln on April 24, 1863 as "General Orders No. 100."
It read: "The following 'Instructions for the Government of Armies of the United States in the Field,' prepared by Francis Lieber, LL.D., and revised by a board of officers, of which Maj. Gen. E. A. Hitchcock is president, having been approved by the President of the United States, he commands that they be published for the information of all concerned. By order of the Secretary of War: E. D. TOWNSEND, Assistant Adjutant-General, Washington, April 24, 1863.” The War of the Rebellion: a Compilation of the Official Records of the Union and Confederate Armies, also known as Official records of the Union and Confederate armies or OR, Series III, Volume III, p. 148.
[Biographical Information**: Joseph E. Fallon is a freelance writer/researcher who resides in Rye, New York. He lived in Egypt where he pursued his advanced degree in Middle East studies and has traveled to Turkey, Turkmenistan, Uzbekistan, and Tajikistan. He received his Masters Degree in International Affairs from Columbia University's School of International and Public Affairs and is a member of the Association for the Study of Nationalities, Harriman Institute, Columbia University. (http://cwis.org/)
[** I believe that this is the same James E. Fallon who has written this book, but I am having problems locating the author’s credentials directly tied into this particular work. If I am incorrect, I will do a follow-up on the credentials of the actual author. However, I have heard Mr. Fallon speak on the subject. The interview can be found at http://www.youtube.com/watch?v=BIX1BDg3y6U]]
Also for consideration, in an article published in 1895, former Confederate partisan commander and lawyer Col. John Mosby wrote:
“In his Memoirs General Sheridan repudiates the humane maxims of Grotius (Hugo de Groot on Natural Law) and Vattel (see above), and lays down an ethical code for the government of armies in war that abolishes all distinctions heretofore recognized between combatant and noncombatant enemies. If the United States should adopt it***, then Napoleon’s saying, “Scratch a Russian (and) you will find a Tarter,” will not apply alone to the subjects of the Czar. In contrast with these pitiless doctrines that suggest the picture of the Infernal Court and “The iron tears that rain down Pluto’s cheek,” are the humane rules of international law as expounded by Professor [Sir Travers] Twiss, of Oxford, in his work on Rights and Duties in Time of War.
[***For some inexplicable reason, John Mosby apparently did not quite understand that the United States had already adopted the “rules of war” produced by Lincoln and his military and that these had been used extensively during the “Civil” War.]
This last two communication appears to be sent to me off the board, so I will not post my reply.
But, fyi, Fallon is not a reliable source on Lieber. The passage pasted below is filled with false statements and extremist bias.
For examples: Lieber, far from hating the US Constitution, venerated it and deplored those secessionists who would destroy the nation on which it was built. His pre-war lectures argued the US Constitution was the basis for a permanent nation, not a voluntary compact or league.
Lieber was not an advisor to Otto von Bismarck, who came to power decades after Lieber left for the US. Nor did Lieber advise President Obama to my knowledge.
Lieber did not address the blockade.
Lieber’s Code did not supplant Vattel, nor the other more recent texts in use by Halleck and Wheaton on international law. It provided a pocket manual that partly summarized existing international law and partly adapted it to the special circumstances of a civil war and one involving slaves. For the most part, Lieber extended the protection of international law to rebel combatants and civilians. Otherwise, soldiers fighting for the South, including Lieber’s son, would be treated as criminals.
Most important Lieber provided a legal principle by which slaves could be liberated during the war:
“Article 42: Slavery, complicating and confounding the ideas of property, (that is of a thing,) and of personality, (that is of humanity,) exists according to municipal or local law only. The law of nature and nations has never acknowledged it. The digest of the Roman law enacts the early dictum of the pagan jurist, that "so far as the law of nature is concerned, all men are equal." Fugitives escaping from a country in which they were slaves, villains, or serfs, into another country, have, for centuries past, been held free and acknowledged free by judicial decisions of European countries, even though the municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions.”
This and other portions of the Lieber Code aim at affirming humanitarian principles that were supposed to govern nations at war. Many legal scholars regard it as the taproot to the conventions of war established at the Hague and Geneva.
The full text of the Liber Code is available at the Avalon Project: http://avalon.law.yale.edu/19th_century/lieber.asp
I, too, have read GO 100 and have found that whatever Lieber said "should not be done" he also provided with the caveat "unless the military authorities determined....etc." Rules that are only good so long as the authorities agree to follow them are not rules at all but attempts to cover abuses and atrocities, ALL of which were committed by the United States in the War.
I have heard so many people disavow factual presentations with the statement that whoever made them was "not a reliable source" whether it be on Lincoln or Lieber or Sherman or anyone else. That is nonsense, especially when the "unreliable source" proves to be the words of the individual him or herself such as happened in Fallon's work Lincoln Uncensored from which the footnote comes.
I don't mind if people disagree with a point, but to denigrate it because the source isn't one of the "orthodox - i.e. politically correct revisionist - historians" - simply reveals that the desire to present a "correct" view of "history" - that is, the winner's version rather than what actually happened - is in play. Lincoln and the rest of his regime believed in the Hobbesian understanding of government, to wit: might makes right and the ends justify the means. Those particular sentiments are being played out today to the detriment of ALL Americans.
The passage you copied from Fallon includes several statements that are flat out incorrect, at odds with historical fact.
I named only a few. I’m sure he has many factually accurate statements in his book as well. But errors and biases such as he displays make him unreliable.
My final response:
You say he (Fallon) has made "several statements that are flat out incorrect (and) at odds with historical fact." What are the statements - and what are the "historical facts" with which he is "at odds?" I've seen a lot of "historical facts" presented by establishment "historians" that were woefully short on both "history" and "facts." Did he misquote Lieber when he stated that the man believed Jefferson's vision of government was obsolete? I doubt it. Lieber seems to be one more German socialist who either came over after the failed revolutions in 1848 or sympathized with those revolutions. Lincoln's government and military was filled with Communists (Richard Dana being one) and socialist German military men. Also, as an advisor to Bismarck* (I take his word that Lieber was not, but I cannot testify to same personally), would not Lieber believe (as did Marx, Engels AND Lincoln) in centralized power and the use of government coercion?
You also state that you "are sure he had many factual statements..." Since everything in the book other than the endnotes were direct quotes from Lincoln, no other conclusion can rationally be reached albeit I have been accused of "taking (Lincoln) out of context" (!) and advised that Lincoln had "grown" since the quote that I provided had been made. Of course, Lincoln changed not one little bit as can be seen from Mr. Fallon's book which includes all ten volumes of Lincoln's papers, speeches and letters.
Furthermore, you marginalize Fallon but fail to mention the "orthodox" historians who write things such as Lincoln never violated the Constitution(!) and fly in the face of irrefutable facts in their "interpretation" of the causes and conduct of the war, failing to mention little things like the ante-bellum theft of Southern resources and the atrocities committed against Southerners (and the Indians) during (and after!) the war. If we're going to dismiss every author who intentionally changed the narrative to suit his own ends, you are going to lose far more Northern defenders than I will Southern ones.
In any event, you cannot deny that Lieber's "code" is filled with well-sounding maxims but appended with caveats that renders it useless as a moral guide to warfare! Why get rid of time-tested Vattel unless you wish to wage total war against civilians and destroy not just enemy armies but enemy civilians and their culture? That's what Lincoln wanted to - and did - do! There is no other reason why courthouses, churches and cemeteries were destroyed when they were not in the path of battle! This was a deliberate effort to destroy the record of the culture of the Southern people in order to consign them and their history to oblivion, a "war" that continues to this day. Such cultural genocide is war crime enough! Even the Germans in WWII limited their efforts in that respect to the Jews.
I have found in the last ten years of my efforts in this field, that people who staunchly defend Lincoln and the Union and resist any effort to broaden the debate to include actual history are of three types. The first are simply ignorant. They believe what they've been told. I was one such until I decided to learn the facts and the truth for myself.
The second discounts and disregards anything and everything including the official records of the Union, photographs of the time and words from the mouths and pens of the people who were there (again, on the Union side), that contradicts in any way, the acceptable hagiography of the wicked, brutal, violent South and the noble, egalitarian, patriotic North. Such people are deliberately delusional and therefore cannot be engaged in serious debate. My mother's response to any argument not going her way is a good example of such thinking when she used to say, "Don't confuse me with facts!"
The third group is far more numerous - and far more troubling. This group accepts accepts and even acknowledges what was done—the atrocities, the crimes, the revocation of the Constitution, the end of the Founding Principle of a nation under a limited (federal not national) government ruling with the consent of the governed and all the rest. But they excuse what was done because it was "necessary!” It was “necessary” to save the Union (did it?) and end slavery (did it not rather enslave everybody?) and as a means of preventing political, social and economic chaos (is that not what we now have?) and all the rest. Such people have a spokesman in well known and respected “conservative” John Bolton who when the matter of today's civil liberties was raised in a recent lecture stated unequivocally, “We killed tens of thousands of American citizens – maybe hundreds of thousands – with no due process whatever in the Civil War. And it was the right thing to do.…”
This is the attitude of many today—both liberal and conservative. Indeed, Lincoln is beloved among many strongly conservative spokesmen! But there is a price for holding the belief that the ends justify the means. Those who do so may not condemn Hitler or Stalin or Pol Pot or Mao or bin Laden, all of whom acted out of a belief that what they were doing was right and that therefore whatever they did to obtain their ends was justified. So those—especially scholars and historians—who justify what was done in the War of Secession with the plea that “it was necessary” are morally equivalent to the apologists for every tyrant who has murdered, raped, pillaged and enslaved throughout history as well as every tyrant who will come forth in the future. Changing the venue of tyranny does not change its moral dynamics.