NO ONE HAD a fiercer vision of justice in wartime than the intense man in charge of military justice in the Union War Department. Joseph Holt was born in Kentucky in 1807. After a brief but lucrative career as a lawyer in the cotton boomtown of Vicksburg, Mississippi, he had retired back to his home state, a wealthy man at the age of thirty-five.
Holt soon became involved in Democratic Party politics. In 1857, President James Buchanan appointed him commissioner of patents. Two years later, Buchanan named Holt to his cabinet as postmaster general of the United States. And when Secretary of War John Floyd of Virginia resigned in the weeks after Lincoln’s election, Buchanan appointed Holt to replace him. From December 1860 until March 1861, Holt worked feverishly to bolster federal defenses around Washington and to defend military outposts in the fast-seceding states of the South, including Fort Sumter in Charleston Harbor. In March, following Lincoln’s inauguration, it was Holt who delivered to the new president the grim news that Fort Sumter could not hold out more than a few weeks without new supplies.
Secession radicalized Holt. He had always been prone to fierce obsessions. Before the war, President Buchanan thought that the Kentucky-born Holt “went further in his hatred of the abolitionists than Christian charity would have warranted.” Now Holt turned his zeal to preserving the Union against the secessionists. For much of 1861, he delivered fiery speeches decrying secession and condemning what he called “the fallacy of neutrality”—the idea that his home state of Kentucky could carve out a noncommittal posture in the conflict. When Lincoln fired his first secretary of war, Simon Cameron, in January 1862, he nearly chose Holt as Cameron’s replacement. Lincoln ultimately settled on Holt’s friend and ally from the Buchanan administration, Edwin Stanton of Pennsylvania. In September, at Stanton’s urging, Lincoln appointed Holt to the new position of Judge Advocate General, making him the Army’s top lawyer.
JOSEPH HOLT’S APPOINTMENT marked a turning point in the Union’s use of the laws of war. When the war began, the law governing soldiers in the armies of the United States was badly out of date. The Articles of War had not been updated for half a century. The office of the Judge Advocate of the Army dated back to the Revolution, but it had been ignored and sometimes even allowed to lapse into nonexistence in the years since. From 1821 to 1849, there had been no judge advocate at all.
At the war’s beginning, the Army’s judge advocate was John Fitzgerald Lee. Lee, who had held the office since its renewal in 1849, was a Virginian by birth and a cousin of Confederate general Robert E. Lee. Like George McClellan, John Lee opposed the disruption of slavery by Union soldiers. He also believed that military commissions—the tribunals crafted by Winfield Scott in 1847 to try offenses for which Congress had not given authority to the traditional courts-martial—had no place in the conflict between North and South. He doubted military commissions’ authority to try captured Confederate soldiers for offenses against the laws of war. But he denied in particular that they had any jurisdiction over civilians, who under the Constitution enjoyed rights of due process and trial by jury in a federal court. When Henry Halleck, as commander of Union forces in the West, prosecuted a Missouri man named Ebenezer Magoffin before a military commission for killing a Union sergeant “when not a legitimate belligerent,” Lee objected that a man who was not a “public enemy in arms” had the right to a trial by jury in open court. “Military commissions,” Lee wrote Stanton in April 1862, “are not a tribunal known to our laws.” Stanton believed that the power to use military commissions was vitally important to the Union war effort. He fired Lee before the summer was over.
Holt determined to adopt a much more expansive approach to military justice. He gathered around him a team of ambitious and well-connected lawyers. Over the next two and a half years, Holt recruited thirty-three men from among the best and the brightest of the northern antislavery elite; Lincoln personally appointed each of them as judge advocates to work under Holt’s direction. Most had roots in the prewar Republican Party. Levi C. Turner, who acted as judge advocate between the discharge of John Lee and the appointment of Holt and stayed on as Holt’s assistant, was a Columbia College–educated lawyer and a founder of the New York Republican Party. John A. Bingham and William McKee Dunn were Republican members of Congress until being turned out in the 1862 midterm elections. Dunn, who had graduated from Yale College, lost because his early support for enlisting black soldiers was highly unpopular in his home state of Indiana. Bingham would later draft the first section of the Fourteenth Amendment to the U.S. Constitution, guaranteeing constitutional privileges and immunities, due process, and the “equal protection of the laws” for the freedpeople. John Bolles, the former Massachusetts secretary of state, grew up in an abolitionist family before graduating from Brown University and writing a prize-winning essay for the American Peace Society. John Knox was the scion of one of Pennsylvania’s most prominent families, a descendant of the republic’s first secretary of war, Henry Knox, and himself a former state attorney general. DeWitt Clinton was the grandson of the great New York governor of the same name. Lucien Eaton was the son of Andrew Jackson’s first secretary of war and a graduate of Harvard Law School.
The law school at Harvard produced five judge advocates in all, including John Chipman Gray (later a professor at the school and founder of one of the country’s leading law firms) and William Winthrop, a descendant of the first governor of the Massachusetts Bay Colony and a graduate of Yale College. Fifteen of the thirty-three judge advocates appointed by Lincoln were educated at one or more of the schools that would later come to be known as the Ivy League universities of the Northeast. Others attended prominent liberal arts schools like Union College in New York or Wheaton College in Illinois.
The judge advocates adopted an aggressive stance that perfectly matched the stepped-up intensity of Lincoln’s approach to the war in the fall of 1862. The very first opinion out of the new Judge Advocate General’s office affirmed the president’s power under the laws of war to seize slaves working on Confederate fortifications. In subsequent weeks, Holt vigorously defended Emancipation and the enlistment of blacks into the Union armies (“a most powerful and reliable arm of the public defense,” he told Stanton). He championed the self-defense rights of newly free black men prosecuted for acts of violence against their former owners. (When one black man in Arkansas nearly severed the head of his former master in self-defense in December 1863, Holt told Lincoln that only an acquittal would properly recognize the former slaves “as occupying the status of freedmen.”) In the field, the judge advocates worked to track down rumors that Confederate captors were quietly executing colored soldiers. And back in Washington, Holt encouraged harsh punishments for whites who continued to buy and sell slaves after January 1, 1863. Failure to punish such men for their “barbarous avarice,” Holt told Lincoln, would “set at naught the proclamation of emancipation” and dishonor the black men who now risked “the perils of battle” and “the horrors of massacre” in the service of the Union armies.
Where Judge Advocate General John Lee had denied that the Union possessed the legal authority to use military commissions as a tool for punishing its enemies, Holt and his team believed that the laws of war vested the president with a wide-ranging power to try civilians and Confederate soldiers alike in military commissions. Lincoln agreed. Three weeks after Holt’s appointment, on September 24, 1862, Lincoln suspended the writ of habeas corpus around the country—effectively precluding judicial inquiry into the legality of arrests—and authorized the trial by military commission of anyone “affording aid and comfort” to the enemy.
Holt’s most significant contribution during his first year in office was a creative act of lawyering that turned the laws of war into a broad warrant for Lincoln’s military commissions. On March 3, 1863, the lame duck Thirty-seventh Congress authorized Lincoln to do what he had already done on his own on September 24, and indeed had been doing in an ad hoc fashion since April 1861: suspend the writ of habeas corpus. Future judge advocate John Bingham was the House floor manager for the crucial legislation. But the legislation also created a new constraint on the president. The second section of the act, sponsored by Senator Lyman Trumbull of Illinois, required the president to submit reports to the federal courts listing all persons held as “state or political prisoners, or otherwise than as prisoners of war.” Any person so listed was to be discharged from imprisonment if the next grand jury session of the court came and went without producing an indictment charging him with a crime. Violating the reporting and discharge obligations was a crime punishable by fine and six months imprisonment.
The statute was clear enough. It artfully removed the legal cloud that had hung over Lincoln’s unilateral suspension of habeas corpus since the first month of the war, while also limiting the administration’s ability to seize people and hold them indefinitely. But Holt ingeniously reasoned away the act’s constraint on executive power. Contending that its terms were “extremely difficult of construction” and potentially at odds with what he delicately called “the exigencies” of the Union war effort, Holt read the statute in such a way as to restore Lincoln’s freedom to arrest noncombatants who aided the enemy. With Stanton’s blessing, Holt decided that the act distinguished between military and political prisoners and applied its requirements only to the latter, excluding not only soldiers held as prisoners of war but also anyone convicted by a military commission for offenses against the laws of war.
As Holt saw it, the act’s constraints on the president’s power had no bearing on prisoners held pursuant to the president’s law of war authority. In so construing the act, Holt set the stage for a radical expansion in the scope of the laws of war.
HISTORIANS OF THE Civil War often cite the postwar prosecution of Captain Henry Wirz, the Confederate commander at Andersonville prison camp in Georgia, as the war’s only trial for war crimes. But this is badly mistaken. Nearly 1,000 individuals were charged with violating the laws of war during the course of the conflict. Of the approximately 4,000 military commissions held by the North during the war, one in four dealt with a law of war violation.14 Indeed, violating the laws of war (as Judge Advocate William Winthrop later remembered) was “the most common form of charge before military commissions.”
The charges were strikingly different from the kinds of prosecutions for law of war violations that would become typical in the twentieth and twenty-first centuries. Since World War II, violations of the laws of war have usually involved crimes such as abusing prisoners of war, killing civilians, or shooting soldiers who are attempting to surrender. Military commissions in the Civil War occasionally charged men with violating the laws of war for committing such acts. But the overwhelming majority of prosecutions arose out of very different kinds of conduct. Against members of the regular armed forces of the Confederacy, for example, the most common violation of the laws of war charged in the military commissions was lurking behind Union lines as a spy. Breaking oaths of allegiance to the Union, parole violation, and recruiting for the Confederacy behind Union lines often led to charges against Confederate soldiers as well.
Far and away the most common defendants were not Confederate soldiers but noncombatants and guerrillas, who constituted nearly 85 percent of the people charged with law of war violations before Union military commissions. Judge advocates charged such defendants with violating the laws of war for a stunningly wide array of conduct. Some charges were for acts closely tied to the war. Judge advocates in Missouri prosecuted suspected members of the notorious William Quantrill’s band of guerrillas for law of war violations when they robbed and killed Union sympathizers. Other charges, however, accused defendants of violating the laws of war for conduct that was a good deal less closely tied to the conflict. In Kentucky, where the courts remained open for much of the war, judge advocates charged noncombatants with violating the laws of war by “using disloyal language” and kidnapping “a contraband negro.” The judge advocates charged forgery artists with violating the laws of war by forging false discharge papers. Assisting desertion was a war crime. So was making a false claim for damages against the U.S. armed forces and corruptly facilitating the release of convicts to serve as substitutes for conscripted men. Neglect of duty by military contractors and service providers could be a violation. So could forging medical certificates or furlough extensions, evading militia service, harboring rebel guerrillas, refusing to take an oath of allegiance to the United States, running the blockade (though not when committed by the nationals of neutral states like Great Britain), obstructing the recruitment of black soldiers, killing a freedman, sending blacks deeper into Confederate territory after Emancipation, attacking black soldiers’ families, conspiring to deprive soldiers of the vote, and desecrating the bodies of dead Union soldiers.
In the border states of Missouri, Kentucky, and Maryland, trading with the enemy was a common way for northern civilians to violate the laws of war. Going into the South without a pass was a law of war crime. (In the border states, citizens with obligations of allegiance to the North were prosecuted for violating the laws of war when they joined the rebel army or evaded service in the Union armed forces, something which Union lawyers did not treat as criminal at all when done by residents of the states that voted to secede.) One St. Louis woman was charged and convicted of violating the laws of war for writing encouraging letters to acquaintances in the South. (A Baltimore woman was similarly prosecuted for sending a sword to a rebel officer, as was the person who purchased the sword in New York City and the two people in Baltimore who took possession of the sword on her behalf.) Horse-stealing could be a war crime. Expressing anti-Union views was chargeable as a war crime in some parts of Missouri in 1862. Even private violence by one noncombatant against another could become a violation of the laws of war so long as it had sufficient connection to the war effort.
Judge advocates sometimes charged Union soldiers with violations of the laws of war, too, for ransacking civilian property or threatening civilians or for attempting to rape noncombatants. But such charges were rare: there were only about thirteen such trials between 1861 and the end of the war. Partly this was because Union commanders could use courts-martial to try their own soldiers for conduct that might otherwise have been charged as war crimes. No doubt the small number of Union soldiers so charged also reflected bias in favor of the Union’s own men.
More fundamentally, the rarity of prosecutions against Union soldiers accused of violating the laws of war reflected the basic function of the military commission and the laws of war in the work of the judge advocates. Since the days of Alexander Hamilton, American statesmen had used the laws of war as a vehicle for expanding the authority of the federal government and of the executive branch in particular. This was Holt’s aim as well. Union judge advocates charged noncombatants with violating the laws of war to establish that they were military prisoners, not political prisoners, and thus (under Holt’s aggressive interpretation) outside the reporting and discharge requirements of the March 1863 habeas legislation. Those who violated the laws of war could also be tried before a military commission even where the regular courts were open for business. By charging violations of the laws of war, Holt’s team of judge advocates was able to circumvent both Congress and the courts and either try or detain military prisoners—whether they were civilians or regular soldiers—as they saw fit.
The judge advocates created an institutional footprint for the laws of war such as had rarely been seen before in American history, if not the history of warfare more generally. Not since the days of the Philadelphia prize lawyers of the early republic, when men like Peter Stephen Du Ponceau, Jared Ingersoll, and William Rawle argued fine points of the laws of maritime warfare in the federal courts, had there been such a concentrated pool of law of war knowledge in the United States. In June 1864, Congress belatedly recognized this by organizing Holt’s judge advocates into the Bureau of Military Justice and promoting the Judge Advocate General to the rank of brigadier general. The law of war now had boots on the ground.
WHEN JUDGE ADVOCATES marched into the field, they carried with them the pocket-sized pamphlet code of rules issued by Lincoln and written by Francis Lieber.
At the start of the war, military tribunals were badly disorganized. Commanders like John Frémont in Missouri tripped over the knotty details of military law. (So did Ulysses S. Grant.) Even into 1862, for example, military tribunals purported to try civilians for treason, a crime the Constitution makes prosecutable only in the courts.
The 1863 Instructions for the Government of Armies of the United States in the Field offered a blueprint for organizing the Union’s military commissions. Article 13 of the code, which Halleck edited so heavily he had virtually drafted it himself, resolved Frémont’s early confusion by carefully distinguishing the two kinds of military tribunals: courts-martial, whose power was “conferred and defined” by the 1806 Articles of War; and military commissions, whose authority was “derived from the common law of war.” Judge advocates cited particular code provisions by number and relied on Lieber for advice in hard cases. (On the rare occasions where the accused was represented by counsel, both the prosecution and the defense often referenced Lieber’s writings.) Connections between the code and the judge advocate corps were cemented in 1863, when Lincoln appointed Lieber’s son Norman (an 1858 graduate of Harvard Law School) as the judge advocate in Union-occupied Louisiana.
The code’s broad view of military authority helped spur a dramatic expansion in the number of military commissions in Union military departments around the country. Before the end of 1862, only Missouri had seen a significant number of military commissions. Once Lincoln issued the code and Stanton distributed it to thousands of officers, however, military commissions spread to military departments around the country. The second half of 1863 witnessed as many military commissions outside Missouri (150) as had been held outside the state in the entire first two years of the war. In 1864, 750 military commissions were held outside the state.
Lieber’s pamphlet code also bolstered the commissions’ conceptual basis. What business, after all, did Lincoln and Holt have trying thousands of U.S. citizens in military courts? Judge Advocate John Lee had objected to military tribunals in 1862. As late as 1864, John A. Dix, commanding the Union’s Department of the East, asked Lieber to explain how military commissions could “take cognizance of . . . any violation of the law of war” by a U.S. citizen when the citizen was not “connected in any wise with the military service of the United States.” Lieber’s stern answer was that war implicated entire populations, not merely (as Rousseau had posited a century before) their armies in the field. “War is not carried on by arms alone,” Lieber’s code stated. The “native of a hostile country” was as much an enemy as the armed soldier, and martial law under “the laws and usages of war” extended “to property, and to persons,” regardless whether they were soldiers or civilians. Lieber told Dix that under the conditions of the Civil War, citizens could (“or rather must,” he corrected himself) “be tried by military courts, because there is no other way to try him and repress the crime which may endanger the whole country.” Indeed, Lieber was not only satisfied with the legality of the military tribunals that Holt’s judge advocates oversaw, he was proud of the United States’ role (and his own part in it) in expanding the reach of the law into domains once dominated by sheer violence. The “careful trials of spies [and] brigands,” he wrote to Halleck, were “a novel feature in the history of the Law of War.” After one spying case, Lieber boasted to Holt that “no person accused of being a spy, in the whole history of war, had ever so dignified and elaborate a trial.”
HOLT’S EFFORTS AND Lieber’s code went to the U.S. Supreme Court after the elaborate (but hardly dignified) arrest and military commission trial of the Lincoln administration’s most implacable northern critic.
In the early morning hours of May 5, 1863, an entire company of Union soldiers—as many as 100 men by some accounts—made its way by unmarked train to Clement Laird Vallandigham’s home in Dayton, Ohio, stormed it with fixed bayonets, and arrested Vallandigham in his bedroom as his wife and sister-in-law cowered behind him. Vallandigham was Ohio’s (and perhaps the North’s) most vocal opponent of the war. A former Democratic Party congressman, he had been giving incendiary antiwar stump speeches throughout the state, excoriating “Lincoln and his minions” and denouncing the conflict as “a war for the freedom of the blacks and the enslavement of the whites.” The new Union commander of the Department of the Ohio, General Ambrose Burnside, worried that Vallandigham’s speeches would undermine the Union’s ability to attract new recruits. Drawing on Lieber’s unpublished early draft of the rules of war, Burnside declared that “all persons found within our lines who commit acts for the benefit of the enemies of our country will be tried as spies or traitors, and, if convicted, will suffer death.”15 After another incendiary speech (delivered while Burnside’s undercover agents took notes in the crowd), Burnside ordered Vallandigham’s arrest.
The next day, May 6, Burnside hauled Vallandigham before a military commission in Cincinnati and charged him with publicly expressing sympathy for the rebellion with the purpose of hindering the U.S. government’s efforts to suppress it. Vallandigham refused even to enter a plea of not guilty: he was not, he insisted, triable by a military tribunal, for he was a U.S. citizen, and as such entitled under the Constitution to due process and a public jury trial in a court of law. But the commission, made up of seven officers from Burnside’s Department of the Ohio, refused to entertain the objection. After two days of trial, the officers adjourned to deliberate.
Not content to await the verdict, Vallandigham sought a writ of habeas corpus from Judge Humphrey Leavitt in the federal circuit court. The government’s response unveiled the legal strategy that had been forged by Holt and that was advanced in the code the Union would release in its final form just days later. To deliver it, Burnside sent two men with close ties to the Lincoln administration: Aaron Fyfe Perry, a leading Ohio Republican who had turned down a seat on the Supreme Court in 1861, and the federal district attorney, Flamen Ball, a former law partner of Treasury Secretary Salmon Chase. Perry argued that Burnside had arrested and tried Vallandigham under the international “laws of war, or martial law,” or what Perry (adapting language Halleck had inserted into Lieber’s draft code) called the “common law of nations.” Lieber’s draft, which was in its final stages of review by Stanton, expressed exactly the same idea, defining martial law as “military authority . . . in accordance with the laws and usages of war.” A nation at war, Perry recited, could “lawfully secure and make prisoners” of any “persons belonging to the opposite party (even the women and children).” Chase’s longtime law partner Flamen Ball summed up the broad implications of the U.S. position. “Ohio,” he said, “is at war because the United States are at war.” And in wartime, “the citizens of the state of Ohio are liable to the operation of the laws of war as administered ex necessitate rei [out of the necessity of things], by courts-martial or military commissions.”Sensing that he was in over his head, an overmatched Judge Leavitt ruled in the government’s favor.
After a week of deliberations, the commission pronounced Vallandigham guilty and sentenced him to prison for the remainder of the war. Lincoln promptly reduced the sentence to banishment from Union lines. But Vallandigham could not be bought off so easily. He petitioned the U.S. Supreme Court to reverse the conviction and sentence of the military commission. When the Court took up the case in February 1864, it let stand the Lincoln administration’s broad assertion of a law of war authority. The opinion by Justice James Moore Wayne noted that Burnside had acted “in conformity with the instructions approved by the President of the United States,” the instructions that (as the Court noted) had been prepared by Francis Lieber and Major General Ethan Allen Hitchcock. Quoting from the code’s Article 13, Justice Wayne observed approvingly that military commissions tried and punished offenses “under the common law of war.”
THE WORK OF Holt and his judge advocates had no analogue in the Confederate States of America. A small rebel office headed by assistant secretaries of war Albert Taylor Bledsoe, a former lawyer turned mathematics professor at the University of Virginia, and then John A. Campbell, a former justice of the United States Supreme Court, presided over a few military tribunals. When Confederate forces caught twenty-two Union raiders trying to destroy the railroad connecting Atlanta to Tennessee in the spring of 1862, for example, military tribunals convicted eight of the raiders as spies and executed them by hanging. But the Confederate Congress refused to appoint a judge advocate general or a judge advocate corps. In the very months of 1863 in which Holt, Lieber, and Halleck were crafting the Union’s expansive conception of the laws of war as a source of authority, the Confederate assistant adjutant general responsible for military justice denounced the idea of martial law as anathema to the Confederate Constitution. Officials in the rebel War Department ruled that there could be no military tribunal jurisdiction over persons residing in the Confederate States of America other than soldiers.
The shrinking Confederate lines of 1863 and 1864 meant that the Confederacy never had the need to develop anything like the Union’s judge advocate staff to dispense justice in occupied enemy territory. Campbell, the former justice, deprecated the significance of his work for the Confederacy as “irksome, uncongenial, and in most cases, trivial labor.” Captured black soldiers might have produced an expansion of the authority of Confederate military tribunals, but instead of treating their actions as war crimes, Jefferson Davis and the Confederate Congress sent black prisoners to the states to be dealt with under the state criminal laws.
It was the North, then, that made the law of war part of its strategy for winning the war. But in so doing, the Union raised a tension that has haunted the law throughout its history. Holt and the judge advocate corps treated the law of war not only as a restraint but as an instrument for increasing the power of a nation at war. In this sense, the law of war was not at odds with campaigns such as Sherman’s March to the Sea. Both were efforts to bring to the South what Sherman called the “hard hand of war.”