Laws sanctioning slaves for military service


During the Civil War, Dr. Francis Lieber collaborated with Union general-in-chief Maj. Gen. Henry W. Halleck in composing a report on the treatment of those who engaged in irregular warfare, “Guerrilla Parties Considered with Reference to the Laws and Usages of War.” According to Rick Beard in the New York Times, April 24, 2013, the paper called for “summary execution for Confederate guerrilla fighters” (http://opinionator.blogs.nytimes.com/2013/04/24/the-lieber-codes/).

Lieber had immigrated to America from Prussia in 1827, and taught for many years at South Carolina College, in a region heavily reliant on a slave-based economy. He later moved to New York, where he became a professor at Columbia College.

In 1862, as the Civil War continued to take a heavy toll on those serving in the military, Union Secretary of War Edwin M. Stanton called upon Lieber to address the “military use of colored persons.”

His response was that the laws of war allowed for the use of slaves in armies. This was a timely legal interpretation prior to President Abraham Lincoln’s issuance of the Emancipation Proclamation several months later permitting recruitment of blacks for military service.

Based on his work to that date, in late 1862 Stanton and Halleck appointed Lieber to revise and update the Articles of War that had been in use since 1806. With Gens. Allen Hitchcock, George Cadwalader, George Hartstuff and John Henry Martindale as advisers, Lieber drafted the codification of a body of humanitarian rules governing land warfare.

On April 24, 1863, President Lincoln approved this document, promulgated as General Orders 100, “Instructions for the Government of the Armies of the United States in the Field.” Unofficially, it was known as the “Lieber Code.” (Capt. James G. Garner, Military Law Review, Vol. 27, January 1965.)

These regulations dealt with a wide range of subject matter, including martial law; public and private property of the enemy; deserters, prisoners of war and hostages; partisans; spies and traitors; exchange of prisoners; parole; capitulation; assassination; and insurrection or rebellion. (Yale Law School’s Avalon Project, (http://avalon.law.yale.edu/19th_century/lieber.asp).

Section 1, Article 43, states that “in a war between the United States and a belligerent which admits of slavery, if a person held in bondage … be captured by or come as a fugitive under the protection of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman.”

Furthermore, “To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being … and the former owner or State can have … no belligerent lien or claim of service.”

When they learned about the issuance of the Lieber Code, Southern authorities were outraged. That was particularly true regarding the code’s position on the recruitment of blacks, which they saw as designed to encourage violent overthrow of the social system in the Confederacy, as well as an inducement toward insurrection by those held in bondage.

The Lieber Code established a basis for the legal conduct of warfare in the mid-19th century. It also served as a model in later years by an international convention on the laws of war presented to the Brussels Conference in 1874, and motivated the adoption of the Hague Conventions on land warfare of 1899 and 1907 (https://www.icrc.org/ihl/INTRO/110).

This code of conduct emanated from an immigrant to the United States who lived and taught in the South for many years, where he witnessed the menace of slavery. Although this code dealt with a broad range of military behavior, it sanctioned recruitment of blacks, including slaves, for the Union army that created an opportunity for revitalization of a beleaguered segment of society.

Bethany Beach resident Thomas J. Ryan is the author of “Spies, Scouts & Secrets in the Gettysburg Campaign” and “Essays on Delaware during the Civil War” (signed copies available at Bethany Beach Books). Contact him at pennmardel@mchsi.com, or visit his website at www.tomryan-civilwar.com.