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Chapter 6: Rules of War and Later Military Confiscation
- Fordham University Press
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Rules of War and Later Military Confiscation T he military’s participation in confiscation occurred during a period of critical discussion about the rules of war. This discussion was clearly important for the conduct of the Civil War and later conflicts, but it did not have much effect on how the military involved itself with confiscation. The debate over the rules of war was, nonetheless, for it explains how both civilians and military viewed the right to seize private property during the Civil War. This debate is central to understanding why the confiscation acts failed to realize the goals of their supporters. When the Civil War began, the Union forces possessed no adequate military code to guide their conduct in the conflict. The only available American guides were General Regulations for the Army, written by Winfield Scott and published in , and Regulations for the Army of the United States , which were inadequate to the problems that arose in the war. Both concentrated on the internal workings of the American army and did not address the issues that other, more notable, commentators such as Emerich de Vattel, Cornelius van Bynkershoek, and Hugo Grotius had discussed—for instance, the rules as they related to international law. Early in the war, most Americans who considered that subject assumed that municipal, not international, law should govern the conflict. West Point graduates did not have any greater understanding of the issues involved. In it had been suggested that Francis Lieber, a scholar on the rules of war, offer a course at the military academy, but the commandant had rejected the idea. As a consequence, many officers were ignorant of the laws of war, as were civilian officials. There were exceptions, though, such as Henry Halleck, who succeeded General John C. Frémont in Missouri in .1 Halleck graduated from West Point in and became both an engineer and lawyer before the Civil War. In he wrote a treatise on fortifications and in published a study on international law, which discussed the laws of war but did not anticipate the questions that soon emerged in the fight between the North and South. As Frémont’s replacement, Halleck instituted regulations that brought some order out of the chaos in Missouri and protected private property, angering some radicals in Congress. In the fall of Halleck asked Lieber, who was teaching law at Columbia University, to send him the lectures he was then giving on the rules of war. Born in Germany, Lieber had been a PAGE 88 ................. 11265$ $CH6 03-11-05 11:39:15 PS R W L M C soldier in the Prussian army before he immigrated to the United States. He arrived in Boston in but later moved to the South, where he lived for twenty years, teaching at South Carolina College. During that time he owned a few slaves, although he professed to dislike the peculiar institution. While in South Carolina Lieber had published important works as a political philosopher . He moved in to New York City. His three sons served in the war; one died for the Confederacy while the other two fought for the Union side. A longtime correspondent of Charles Sumner, with whom he often agreed on the objectives of the war, Lieber was devoted to the Union.2 In September , Lieber, like many Northerners, applauded Frémont’s proclamation, but, like Lincoln, he doubted that the general had the power to free slaves. Lieber had already expressed concern that the military did not understand the problems surrounding slavery as it moved into the South. For example, he had opposed the word ‘‘contraband’’ used in connection with General Ben Butler at Fort Monroe because it suggested that slaves were property. Although he had long disliked slavery, he believed only Congress could authorize confiscation of slaves; this was effectively Lincoln’s position in . Lieber wanted to write a treatise to assist the military on such questions and in March received encouragement for the project when he met Halleck on a trip west in March to see one of his sons, who had lost an arm. In May, again agreeing with Lincoln, Lieber found fault with Hunter’s proclamation freeing slaves along the seacoast. According to Lieber, Hunter had not consulted with his superiors and had based his proclamation on martial law, when the army did not control the area in question. At the request of Attorney General Bates, Lieber agreed to have his views on Hunter made public in early July...
