In lieu of an abstract, here is a brief excerpt of the content:

  • Civil War Historians and the Laws of War
  • John Fabian Witt (bio)

It is a thrill to be here this evening to receive the Tom Watson Brown Book Prize from the Society of Civil War Historians and the Watson-Brown Foundation. I am principally a historian of American law. It has not escaped my attention that I did not come to my book project as a certified Civil War historian. In fact, I spent much of the seven years during which I wrote the book in a state of abject terror at the errors of fact and interpretation that real Civil War historians would identify once it was published. A challenge I put to myself was to imagine the members of this society as my readers and to try to meet your standards. If I have come close to doing that, I am truly pleased.

What I want to talk to you about tonight is the problem of the laws of war in history and in the history of the Civil War in particular. What I’d like to do is banish some misconceptions about how law figures in history and to suggest the beginnings of a way for historians of the Civil War to think about law in the midst of armed conflict. For make no mistake about it: the question of whether law matters in moments of war is a fraught one, with a long history going back to Cicero, who warned that the law fell silent in times of war; running through Cervantes, who coined the phrase “all is fair in love and war”; and reappearing regularly in the modern world right up into the present day. Some disillusioned law professors have thought that [End Page 159] in hell there is nothing but law. But if Sherman ever really did say, “War is hell,” we can be pretty sure that he meant there was no law there at all.1

But that’s not quite right: law usually does play a role in even the fiercest of human conflicts. Norms and symbols may even play an inescapable role in such moments, though I don’t mean to take on the burden of establishing that universal claim tonight. All I’d like to do here is persuade you that law, properly understood, powerfully shaped a conflict whose story has more usually been told through the minié ball and the Springfield rifle.

To begin to see this, we might start the story a little more than 150 years ago, when a law professor stood at the front of a lecture hall in the old Historical Society building at 11th Street and 2nd Avenue in New York City to deliver a lecture about the laws of war. “It is seasonable to discuss the laws of war,” announced Francis Lieber, “because we live in the midst of it.”2

For two hours Lieber took his students at the new law school at Columbia College along with an audience of assorted observers and members of the press on an epic tour of the long and troubled history of attempts to regulate war by international law. He reviewed customs for the treatment of prisoners, the distinction between soldiers and noncombatants, and the use of tactics such as poison and assassination. The lectures were long and rambling, but they were a success that lived up to their author’s wildest dreams.3 For the next four months, the rest of the winter term, Lieber’s lectures were carried in the New York Times and reprinted in newspapers across the country. The lectures caught the attention of Secretary of War Edwin Stanton and renewed Lieber’s friendship with Henry Halleck, soon to be Abraham Lincoln’s general in chief. At the end of 1862 Stanton and Halleck turned to Lieber to write a code of instructions on behalf of the president, a code that would restate the international “laws and usages of war.” In May 1863 Lincoln issued the code as General Orders No. 100 of the Union army.4

The code quickly spread around the world. International lawyers translated it. European states copied it in field manuals. Its basic outlines were written into the...