IT’S A GOOD thing for me that the law now discourages the use of armed force to collect unpaid debts, because in the course of writing this book I’ve amassed intellectual indebtedness on which I cannot imagine I’ll ever be able to make good.
Two law school deans—Robert Post at Yale and David Schizer at Columbia—provided research support for a project that must sometimes have seemed unlikely ever to come to fruition. A fellowship from the John Simon Guggenheim Memorial Foundation in 2010–2011 gave me much-needed time to bring the book toward completion.
Collegial groups at law schools around the country read early drafts of parts of the book and provided invaluable feedback on the stories and arguments therein. At Columbia, George Fletcher and Lori Damrosch put together a workshop in 2007 in which I first rehearsed some of the ideas that gave shape to the project; almost five years later, Sarah Cleveland hosted another session at Columbia where I was able to hone some of the fine points as the book came together. Bernadette Meyler and the Cornell Law School Humanities Workshop helped me think more clearly about chapter 3. I’m grateful to the Harvard International Law Workshop, where Bill Alford and Ryan Goodman presided over a session on an early version of chapter 1. The Harvard Legal History Workshop, ably led by Jed Shugerman, read and commented on a version of chapters 7 and 8. Dan Hulsebosch, Bill Nelson, and John Reid hosted me with their usual aplomb at the NYU Golieb Legal History Colloquium and led me to substantially revise much of the material in chapter 2. David Golove and Rick Pildes at the NYU Public Law Colloquium did the same for chunks of Part I. Keith Whittington, Paul Frymer, Dirk Hartog, and the Princeton Public Law Workshop sharpened a number of the arguments of Part II. Bob Gordon and the Stanford Law School Legal History Workshop helped me think through much of the last part of the book. Barbara Fried, Dan Ho, Jenny Martinez, and the Stanford Legal Theory seminar pressed me on some of the hardest questions inchapter 8. Chris Tomlins brought his characteristically sharp eye to a presentation on the book at the University of California at Irvine. Alison LaCroix hosted an afternoon session at the University of Chicago, where she, Adam Cox, Jake Gersen, Eric Posner, and others were terrific interlocutors. Steven Wilf gave me the opportunity to share some of the book’s ideas at the University of Connecticut. Martha Jones and Rebecca Scott presided over an invaluable session at the University of Michigan that helped me impove the arguments inchapter 3. Bill Eskridge and Paul Gewirtz convened a session of the Yale Law School Faculty Workshop that hashed out some of the tricky puzzles of chapter 4.
The generosity of David Jones and the Yale Law School Class of 1960 made possible an inaugural lecture in which I presented some of the material on Lincoln and Lieber for the first time. Many thanks to the Duffy family—Lucy, Daniel, Sam, and Tim—for being a part of that occasion, which was held in honor of the late Allen Duffy. In Los Angeles, Gregory Rodriguez and the folks at Zócalo Public Square assembled a convivial audience to talk about the Mexican-American War of 1846–48. Many thanks to Bill Deverell and the Huntington-USC Institute on California and the West for arranging the Zócalo event, and to Bill and the Huntington Library’s Jenny Watts for their magnificent hospitality. In Washington, the American Society of International Law and the American Red Cross hosted a stimulating session on the laws of war in the Civil War where Isabelle Daoust of the Red Cross, Dick Jackson of the Department of Defense, and Gary Solis of American University served as collegial fellow panelists for the day. Adam Tooze and Patrick Cohrs of the Yale History Department arranged a stimulating one-day session on war in the Atlantic world and graciously let me present material from chapters 9 and 11. A 2008 conference at Columbia University sponsored by Mark Mazower and the Center for International History allowed me to work out an early version of some of the ideas advanced here; many thanks to Philip Bobbitt, Sir Michael Howard, Jan-Werner Muller, W. Hays Parks, and Anders Stephanson for participating.
I have been fortunate to have the benefit of comments on parts of the manuscript from many friends and colleagues, including Bruce Ackerman, Mike Agger, Akhil Amar, Richard Bernstein, David Blight, Christina Burnett, Bo Burt, Chris Capozzola, Stephen Carter, David Brion Davis, Ariela Dubler, Noah Feldman, Willy Forbath, Charles Fried, Heather Gerken, David Glazier, Annette Gordon-Reed, Oona Hathaway, Isabel Hull, Paul Kahn, Marty Lederman, Tom Lee, Yair Listokin, Peter Maas, Trevor Morrison, Sam Moyn, Jens Ohlin, Nick Parrillo, Aziz Rana, Peter Reich, Judith Resnik, Jed Rubenfeld, Peter Schuck, Scott Shapiro, Mark Shulman, Ganesh Sitaraman, Skip Stout, Adam Tooze, Matt Waxman, and Jim Whitman. I taught seminars on the history of the laws of war with Oona Hathaway, Sam Moyn, Jim Whitman; I am grateful to all three of them and to our students. Lori Damrosch generously sent along a Lieber letter from the University of South Carolina’s Irvin Department of Rare Books and Special Collections. My one-time neighbor Jim Oakes of the City University of New York graciously shared an early draft of his terrific next book and offered incisive comments that significantly sharpened mine.
In the final months of completing the book, Burrus Carnahan, Gene Fidell, Jack Goldsmith, Dan Hulsebosch, Andrew Kent, Harold Koh, Craig Symonds, and Detlev Vagts each read and commented at length on the entire manuscript, for which I am eternally grateful.
A great number of superb librarians and archivists have helped me with one or another stage of the project. Kent McKeever at the Diamond Law Library at Columbia got me off to a flying start. Olga Tsapina at the Huntington Library helped me work with the library’s Lieber materials. Roberta W. Goldblatt at the Library of Congress’s Federal Research Division took time out from her busy schedule to give me access to the only partially cataloged collection of Lieber materials inherited by G. Norman Lieber and held on loan from the Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. A small army of manuscript specialists helped locate particularly valuable letters and other obscure items, including Nann J. Card at the Rutherford B. Hayes Presidential Center in Fremont, Ohio; Mary Person at the Harvard Law School Library; Michelle Gachette at the Harvard University Archives; Paul Harrison in the Archives Reference Section of the National Archives and Records Administration; and archivists at the Massachusetts Historical Society. Tom Lowry at the Index Project provided data from his massive database of Civil War courts-martial, a subset of which I was able to crosscheck. The reference librarian staff at the National Archives in Washington, D.C., is a constant reminder of what wondrous things a professional civil service is able to accomplish. At late stages in the process, James Tobias at the Historical Resources Branch of the U.S. Army Center of Military History and Dr. Andrew J. Birtle offered considerate responses to an out-of-the-blue inquiry, as did Shannon S. Schwaller of the U.S. Army Heritage and Education Center in Carlisle.
The Lillian Goldman Library at Yale Law School is one of the wonders of the known world. Blair Kauffman oversees a staff of indefatigable and super-smart librarians who tracked down endless leads (and often generated new leads all by themselves) in the search for materials for the book. I am especially grateful to John Nann for reference help and to Sarah Kraus and Richard Hasbany for their good cheer and astounding speed. Fred Shapiro tracked down obscure quotations with the skill for which he is renowned.
I was also fortunate to have the benefit of heroic research assistants and students. At Columbia, Sameer Bajaj, John Eichlin, Gideon Hart, Dodi-Lee Hecht, Maeve Herbert, Matthew Podolsky, and Kamal Sidhu made the project their own for a time. (Gideon and Maeve published excellent scholarship of their own on the basis of research that began with what they did for me and then went far beyond.) At Yale, Kathryn Cahoy, Kellen Funk, Jeff Lingwall, and Dana Montalto put in more hours than I thought possible, and the book is better for it; Alyssa Briody, Marissa Doran, Adam Hockensmith, Gina Cabarcas Maciá, William Moon, David Rojas, and David Simons also helped collect and digest numerous sources. I am thankful for all their work, though they (like all those thanked here) are not responsible for any of the conclusions I reached or any errors I may have made.
With her usual good spirit, Alieta-Marie Lynch did yeoman’s labor preparing the bibliography for the book (available on-line at the Yale Law School Library) and helping acquire images and permissions.
My agent, Andrew Wylie, has been unstintingly encouraging since the book’s inception. Even better, he shared crucial Wylie family history relating to the assassination of Abraham Lincoln. Emily Loose at Free Press is as sympathetic an editor as I could possibly have hoped for; at every stage of the process, she understood exactly what the book was about. Thanks to her assistant Chloe Perkins, too, for excellent assistance in the final stages of the book’s production, and to Ann Adelman for superb copyediting.
John C. Crowe, my great-great-grandfather, served in the Civil War as a drummer in the 74th New York Infantry and the 40th New York Infantry. While many of his neighbors and relatives in the Five Points neighborhood of New York City were protesting the draft and voting against Lincoln in the 1864 presidential election, he signed up to serve again when his three-year term expired. A little more than a century later, and under radically different circumstances, my father served as a conscientious objector during the Vietnam War. Each in his own way thought long and hard about justice in wartime.
Thanks most of all to my boys Gus and Teddy, for enthusiastically joining dinner table conversations about long-ago events, and to the incomparable Annie Murphy Paul, for being the ideal partner in all things big and small.
John Fabian Witt
New Haven, Connecticut
May 2012