Columbia University’s trustees have selected Lincoln’s Code: The Laws of War in American History by John Fabian Witt as a co-recipient of this year’s prestigious Bancroft Prize. The other winner is W. Jeffrey Bolster’s The Mortal Sea: Fishing the Atlantic in the Age of Sail.
This blog featured a review of Witt’s book last fall.
Filed under Civil War, Lincoln Historiography, Lincoln Updates
Not long ago we mentioned an informal poll conducted by The Washington Post, asking readers to name the best biographies of each American president. The results of that survey are in. The volumes selected for Lincoln include recent single-volume treatments by David Herbert Donald and Stephen B. Oates alongside older works by Carl Sandburg and Lord Charnwood, as well as Doris Kearns Goodwin’s bestselling Team of Rivals.
Filed under Lincoln Historiography
By Michael Lynch
Recent years have seen a number of solid historical books on the scope of war’s destructiveness and the forces that either escalate it or rein it in. Mark Grimsley’s Hard Hand of War was one of the seminal works in this scholarly conversation; other contributors have included Mark Neely and Wayne Lee. John Fabian Witt is the latest historian to examine Americans’ attempts to regulate and legitimize warfare in Lincoln’s Code: The Laws of War in American History. His portrayal of the history of rules to govern nations and individuals at war leaves the reader with the distinct impression that such rules have exacerbated warfare’s violence as often as they have reined it in.
The regulation of war has been an important force in American history from its very beginnings. The American Revolutionaries prided themselves on adherence to the mores of restrained, civilized war that were fashionable during the Enlightenment, and with independence won, the country’s leaders expended considerable effort upholding the right of neutral shipping as a component of the law of nations.
War raised legal questions involving the behavior of individual soldiers and civilians as well as countries. When American troops campaigning in Mexico found themselves subject to attack by guerrillas, and as U.S. reprisals against Mexicans threatened to escalate this conflict to frightening levels, the novel situation of dealing with military transgressions overseas led American commanders to develop important innovations, particularly the use of military commissions to try enemy personnel.
But it was the Civil War which proved to be especially fertile ground for the growth of military law. In Witt’s portrayal, Lincoln and his advisers emerge as consummate pragmatists, shifting from one set of standards for conducting war to the other depending on the Union’s particular needs at any given time. This flexibility led to some thorny contradictions; subjecting the Confederacy to a blockade was a convenient means of employing commonly recognized principles of the law of nations, but also made it difficult to prosecute blockade runners as illegitimate pirates. 
A thorough and systematic presentation of the rules governing Union armies emerged out of the messy nature of this war that was both a contest between parties claiming the status of sovereign nations and a rebellion by one section against the rest of the country. The man responsible for crafting it was Francis Leiber, a Prussian immigrant to the U.S. and military philosopher whose notions of the boundaries of proper behavior in war differed markedly from those of most eighteenth-century thinkers. Whereas Enlightenment thinkers believed that an army gained its legitimacy from its conduct rather than the cause for which it fought, Leieber argued that proper ends could legitimate extreme means. Lieber was also a proponent of the idea that sharp wars were ultimately more humane because their severity convinced a foe to yield quickly and thus saved lives, a stance shared by some of the Union’s most prominent leaders (including hard war practitioner William T. Sherman). When the Confederacy began incorporating partisan guerrillas into its regular forces, the Union government tapped Lieber to create guidelines for determining the status of prisoners. In Dec. 1862, Union authorities turned to him again, this time to craft a more comprehensive code of regulations to govern the behavior of armies in the field. The result became General Order No. 100, which turned Lieber’s notions of aggressive, pragmatic warfare into official Union policy.
This aggressive turn to the Union war effort developed alongside Lincoln’s policy of emancipation. War had been a corrosive agent against slavery since the time of the Revolution and the War of 1812, but to Americans of the time, the loss of their slaves ran counter to contemporary notions of the sanctity of civilian property in war. But the exigencies of the Civil War allowed Lincoln to take the extraordinary measure of freeing slaves in rebellious territory. This extreme act, which prompted howls of outrage from earlier Americans who saw their slaves abscond with British armies, became justifiable within the framework of an aggressive war effort because it served a laudable end. Emancipation thus conformed to Lieber’s concept of aggressive war measures legitimized by the goal in sight.
The same notion of aggressive war was practiced by Judge Advocate General Joseph Holt, who upheld Lincoln’s use of war powers and the use of military commissions to try those accused of transgressing the laws of war. Most of these commissions tried guerrillas and non-combatants instead of Union soldiers, and for a wide variety of offenses. The pragmatic philosophy of aggressive war out of military necessity also lay behind Sherman’s destructive march to the Georgia coast and then into South Carolina.
Lieber’s Code outlasted the war it was created to regulate. The expansion of the scope of military authority shaped post-war policies regarding the treatment of Lincoln’s assassins, prominent ex-Confederates, and the former Confederate states as a whole. The U.S. also found an aggressive military code useful in dealing with Indians. Whereas earlier American armies used the notion of Indians as outside the customs of civilized war to justify harsh measures against them, after the Civil War the use of military commissions legitimized the use of the death penalty against these enemies whose exact status was open to question. Thus the code gave official backing to the killing of captured foes, an act that earlier armies had handled in an extralegal manner. Similarly, American troops in the Philippines invoked the standards contained in Lieber’s code to justify an aggressive imperial war in that island nation, even as some of them transgressed that code with the use of torture, which Lieber himself had refused to include in his range of permissible behaviors. And it was not only Americans who found in the laws of war a pretext for harshness, as European statesmen used the Lieber Code as the basis for a new body of international military laws. Leaders of the strong, modern nations of the late nineteenth and early twentieth centuries balked at the notion of circumscribing their armies with strict standards of behavior, but were open to Lieber’s more aggressive approach.
Witt thus puts the evolution of war-making during the Civil War within a broad historical context, both backward into the Enlightenment and forward into the modern era. Lincoln’s Code demonstrates how the use of emancipation, military courts, the Anaconda Plan, and Sherman’s “hard war” developed out of questions that arose early in American history, and how consequential the Civil War proved to be on several different political, legal, and moral fronts.
Some of the most prominent recent scholarship on the destructive nature of the Civil War has emphasized that destruction’s limits rather than its scale; the “hard war” was an escalation, but it was neither wanton nor unrestrained. Witt’s emphasis is more on what the aggressive code of war allowed than on what it prohibited. Time and again, he explains how politicians and commanders found that laws of war actually magnified their power and the power of the armies under their authority. Laws and regulations were ambiguous in their effects; they drew lines which armies are not allowed to cross, but the very act of drawing lines legitimized behaviors on the other side of them.
The law of war, as Witt presents it, has therefore served to give official sanction to the escalation of violence as well as condemn it. In this age when American leaders are once again grappling with issues relating to soldiers, enemy combatants, and civilian populations, scholarly attention to the problem of regulating a government’s power to wage war is especially timely. Lincoln’s Code is a comprehensive, readable, and incisive examination of this problem’s historical dimensions.
—Michael Lynch graduated from LMU with a degree in history, worked at the Abraham Lincoln Library and Museum as an assistant curator, and now teaches survey-level history courses on campus. He holds an M.A. in history from the University of Tennessee and blogs about historical topics at pastinthepresent.wordpress.com.
Richard Current, one of the most influential Lincoln scholars of the twentieth century, died in Boston at age 100 on Oct. 26. His books included The Lincoln Nobody Knows and Lincoln the President: The Last Full Measure. The New York Times has an extensive summary of his life and work.
Filed under Lincoln Historiography
The author of a new biography of Lincoln’s rival-turned-cabinet-member spoke to NPR about the relationship between the two men.
Filed under Lincoln Historiography, Lincoln Updates
This is the second in our occasional series of interviews with notable Lincoln scholars. Dr. Brian Dirck is a professor of history at Anderson University in Anderson, IN. He received his doctorate from the University of Kansas, writing his dissertation on Lincoln and Jefferson Davis. That project was the basis for his book Lincoln & Davis: Imagining America, 1809-1865. Other books he has written or edited are Waging War on Trial: A Handbook with Cases, Laws, and Documents; Lincoln Emancipated: The President and the Politics of Race; The Executive Branch of Federal Government: People, Process, and Politics; Lincoln the Lawyer, which won the Benjamin Barondess Award from the New York Civil War Roundtable; Abraham Lincoln and White America; and Lincoln and the Constitution.
How did you get interested in the study of history in general and Lincoln in particular?
I suppose my love of history began with my family, particularly my dad and my grandmother. Dad has always been a big history buff, and growing up we used to watch history-related TV shows and movies all the time. My grandma was also a lover of history and folk stories, and she constantly told me stories about our family during the Great Depression, World War II, and (of course) the Civil War. Turns out I had a great-great grandmother, a Confederate sympathizer in Missouri, who actually hid a Confederate soldier under her petticoat while Union soldiers searched the house looking for him. Stories like that stick in your head.
Still, I wasn’t planning on doing history for a living until my sophomore year in college. I was fortunate enough to take a U.S. history survey course from Dr. Gregory Urwin, an outstanding teacher and scholar. His classes were simply mesmerizing; and later he became my advisor, mentor, and good friend.
Greg helped me develop my interest in the Civil War era, but I didn’t decide to focus on Lincoln until grad school. I shifted my attention towards the political, legal and constitutional aspects of the war while working with Harold Hyman at Rice University. I then entered the Ph.D. program at the University of Kansas, where I met Phil Paludan. Phil at that time was writing his book, The Presidency of Abraham Lincoln, and I acted as a research assistant for that book. This, along with many a conversation with Phil, sparked my interest in Lincoln, which has since become my primary scholarly pursuit.
Your first book examined Lincoln and Jefferson Davis side by side, and you argued that the two men had different concepts of the American nation. How would you contrast their views?
Well, they were very different men, in so many ways. I argued that their personalities, their professions, and their political ideologies led them to develop quite different ideas about the nature of community in general. Lincoln the lawyer developed a sense of community as an eminently rational, reasonable enterprise, in which people come together based upon a larger unemotional calculation of mutual interests. Davis the former army officer, however, believed in what I called “communities of sentiment”—people who bonded on an emotional level, with shared feelings of camaraderie and loyalty. These very different ideas in turn fed how they understood nationalism, both before the war and as presidents of the Union and the Confederacy. 
Did Lincoln and Davis have distinct styles of leadership?
Very much so. Lincoln’s style of leadership was very rational, reasonable and devoid of any intense feelings of loyalty, anger, etc. He could work with just about anyone, because he didn’t need to think a person was a friend or an ally to interact with him; nor did he ever imply that he understood people’s inner motives. Davis, on the other hand, was all about friendship, inner motives, and emotion. He had to feel a certain sense of affinity for someone, a certain emotional bonding, or else he just couldn’t work with that person very well.
Now, that said, I’ve always hesitated to make the distinction of leadership style too lopsided in favor of Lincoln. Yes, he was a superior leader, of course (he was Lincoln, after all), but Davis was no fool; and I very much disagree with the notion, first advanced I think by historian David Potter, that, had the two sides exchanged presidents, the Confederacy would have won. I don’t think Davis was that bad a leader; he was really just handed a bad situation.
You’ve written quite a bit about government and public policy in addition to your historical work on Lincoln. How has your scholarship on subjects like the executive branch and the legal implications of waging war impacted your historical research?
By giving me a good sense of context. It is so easy to get too narrowly focused on one little area of history, like Lincoln or the Civil War, and lose sight of the big picture. My work on the presidency in general, and the legal/constitutional issues involved in waging war in American history, helps me keep a sense of perspective.
One of your most well-known books is Lincoln the Lawyer. Why did you decide to examine his legal career as a research topic?
That book was the product of a fortunate combination of circumstances. While at Rice, I worked under Harold Hyman, as I said earlier. Harold was both a Civil War and a legal and constitutional historian. When the time came to write my master’s thesis for him, I chose as my subject the law practice of a Texas lawyer, Nathaniel Hart Davis, who practiced law in Texas during the Civil War era. It was a nice little project, and it gave me an appreciation of the odd fact that very little has been written about the everyday lives and careers of nineteenth-century lawyers, and this despite the fact that America was practically wall-to-wall lawyers during that time.
I chose to focus on other things for my dissertation and first book. But right after Lincoln and Davis was published, I was asked to review for H-NET the awesome CD-ROM database on Lincoln’s law practice produced by the Lincoln Legal Papers Project. So now I owned this database (which of course I got to keep because of the review), and I had the opportunity to further explore some themes I had begun to explore in Lincoln and Davis. And I had some experience with this sort of analysis from my master’s thesis. Couldn’t have worked out better. 
How would you characterize Lincoln as a lawyer? What sort of preparation, if any, did his legal practice provide for his political career?
Lincoln was a solid, very competent attorney. He was not a super-star, a Clarence Darrow type, but he was good at his job, and he got better as he gained more experience. I argue in my book that he did his job, did it well, and was highly enough regarded that he earned the respect of his clients and his colleagues.
As for his practice’s influence on his leadership as president, that influence was subtle, but important. The law taught him how to negotiate and to work out pragmatic, common-sense solutions among people with different points of view—a great strength of his presidency. It also taught him that he need not necessarily like a person, or know that person’s innermost motives, in order to work with him/her. In his law practice he met all sorts of people—good, bad, indifferent—and he still had to find a way to work with them, and to get them to work with each other. The law taught him how to do that later on when he led a nation of often difficult, contrary people.
You’re a very prolific scholar. This year in particular has been busy for you, with the publication of two books. Do you keep a regular writing schedule?
Yes, generally speaking when I’m working on a project, I aim for a page a day. This gives me a nice, regular rhythm, and is realistic, given my teaching schedule and family life.
One of the books you just released is devoted to the matter of Lincoln and race. What were his racial attitudes? How typical was he for a man of his time and place with regard to racism?
Yes, my book on this subject is Lincoln and White America. In it I try to ask a question about Lincoln and race from a slightly different point of view. I wanted to understand what he thought about “whiteness,” what white racial identity was for him, and what he thought about the white supremacy that pervaded his time period. In this I drew upon the so-called “whiteness studies” pioneered by scholars like David Roediger, Noel Ignatiev, and others, which examines how white supremacy was structured as an ideology in American history.
I argued that Lincoln’s views on whiteness and white supremacy were rooted in his humble origins. We tend to romanticize those origins, but he would not have done so; and in fact, he would have been referred to by many in his time as “white trash.” He spent a good deal of his early life trying to flee that “white trash” stereotype, and this colored many of his personal and professional choices. In his own racial views, I argue that yes, he was a white supremacist, but of a sort that was comparatively benign, especially compared to contemporaries like Stephen Douglas. He was capable of moments of humanity towards nonwhite people, but as a rule he did not challenge the tenets of white supremacy until the end of his presidency, when he began to finally and directly confront white supremacist thinking.
Your other new book is an examination of Lincoln and the Constitution. How would you describe his relationship to that document? Was he too broad in his use of presidential power?
This book is part of the wonderful new Concise Lincoln Library series, published by Southern Illinois University Press. The idea is to provide brief, easily accessible examinations of various aspects of Lincoln’s life and career—as in my case, his ideas about the Constitution.
I argue in my book that Lincoln’s basic relationship with the Constitution can be summed up as essentially optimistic. Whereas so many others in his time saw in the document limitations, shackles and inadequacies, Lincoln saw the capacity for growth and progress in the Constitution, especially when coupled with the Declaration of Independence’s higher ideals. And while I recognize that Lincoln’s use of presidential power was quite robust and could occasionally lead to excesses, on the whole his record is quite positive. He was a strong president, but he was no tyrant, not to any reasonable observer.
Finally, are there any lessons modern American leaders can learn from Lincoln?
I think in this hyper-partisan political era we can see in Lincoln a man who was passionate and in many ways quite “partisan,” himself, but still able to work with people of different points of view.
Filed under Lincoln Historiography
Lincoln’s Code: The Laws of War in American History by John Fabian Witt, hits bookstore shelves in a few days. Eric Posner considers the legal and moral implications (and ambiguities) of Lincoln’s conduct of the Civil War in a piece at Slate.com.
The Washington Post is asking readers to name their pick for the best biography of each president (or at least as many presidents as possible). When it comes to Lincoln, there’s a much wider selection than for most of the other White House occupants. Here are some of the cradle-to-grave treatments, listed alphabetically by author:
By the time you factor in the books on more specific aspects of Lincoln’s life—his religious beliefs, his presidency, his marriage, and so on—you’re dealing with an almost overwhelming amount of material to read, more than that for any other American.
If you’ve got a favorite biography of Lincoln, leave us a comment here at the blog and tell us what it is, and then head over to the WaPo site and add your suggestion.
Filed under Lincoln Historiography
The prolific Lincoln author was the subject of a profile published Sunday:
Mr. Holzer, who uses summer vacations to research and weekends to write, has been hooked on Lincoln for over a half-century, ever since a composition assignment in the fifth grade found him randomly picking the president’s name from a hat. His buddy picked Genghis Khan and eventually became a rock ’n’ roll promoter. (“Whatever you are, be a good one” is bromide advice attributed to Lincoln.)
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William Lee Miller, a former professor at the University of Virginia and author of numerous works on American history, passed away May 27 at the age of 86. His books included Lincoln’s Virtues: An Ethical Biography and President Lincoln: The Duty of a Statesman. Dr. Miller received the Lincoln Diploma of Honor at LMU’s May 2005 commencement ceremony, for which he also delivered the keynote address.
Filed under Lincoln Historiography, Lincoln Updates
