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Code for the military dates to the Civil War and Franz Lieber of Germany

Written By | Nov 1, 2013

VIENNA, Va., November 1, 2013 –  The Sesquicentennial of the Civil War has seen commemoration of dozens of different things of interest – battles, forts, prisons, skirmishes and the like.

One thing that has not been mentioned during the four-year commemoration is the Lieber Code, a highly detailed and lengthy (451 Articles) document, which set out the acceptable actions of a military group, particularly one, which has overcome another, and their treatment.  If you are one who knows only two codes, Hammurabi’s eye for an eye version, (heavy on slaves and women) and the Morse code of dots and dashes, this one had real teeth in it.

The author of this rather large codification of regulations was a man named Francis (or Franz) Lieber, born in Berlin, Germany, wounded in the Battle of Waterloo, who moved to Boston in 1827 when he was 27 or 29. His actual date of birth is in dispute, as he lied in order to join the army.

From encyclopedia editing to swim classes

Lieber had a rather varied life and activities: He edited an Encyclopaedia Americana; established a swimming program and a Boston School, which did not survive past two years; and became a professor of history and political economics at a small college in South Carolina (now the University of South Carolina) where he turned out some of his most important written works.

Maj. Gen. Henry Halleck was general-in-chief of the Union armies in July, and he quickly learned that there were no rules or regulations overseeing and controlling any contact between the Union forces and the irregulars or guerrillas of the Confederate groups out in the field, as well as black and white prisoners.

He knew Franz Lieber, and contacted him in a letter written on August 6, saying, “The rebel authorities claim the right to send men, in the garb of peaceful citizens, to waylay and attack our troops, to burn bridges and houses, and to destroy property and persons within our lines.”  While he did not say it specifically, history tells us that the same civil attacks were being wreaked upon those Rebels by the Union troops as well.

It was Martin Luther who is credited with the proverb, “It all depends on whose ox is being gored,” a transmutation of the verses in Exodus on the subject of oxen, which doubtless accounted for both Halleck and Lieber’s opinions in the matter. (The Code covered a variety of regulations covering oxen.) Once Henry Halleck had mentioned the Prussian’s considerable abilities to President Abraham Lincoln, the question of who to handle his idea of a document, which would somehow bring moral principles vs. military necessities into agreement with each other, was settled.  And Franz Lieber suddenly had a rather important job to handle.

In one of his writings is his favorite motto: Nullum jus sine officio, nullum officium sine jure, which translates “No right without its duties, no duty without its rights.” This forms the psychological basis for his eponymous Code, the basic precepts of which can be found in its successor documents, the Hague Treaty and the Geneva Convention of 1907, et seq.

His connection with the Civil War was personal; even though a resident of South Carolina, the cradle of secession, he had sided with the North, going so far as to make an address down there warning the seceding states against their actions.

However, when the chips were down, his geologist-trained son, Oscar Montgomery, was killed in action while serving with the Confederate Army. A second son, Hamilton, served with the Union in the 9th Illinois Regiment, and was seriously injured at the Battle of Fort Donelson.  A third son, Guido Norman Lieber, was a government lawyer, and later became a career officer.

Lincoln’s salutary idea

And so, we can blame Pres. Abraham Lincoln for this little document, which has come down through the ages and wars and would best be compared to the Geneva Convention of 1907 and thereafter, and which theoretically governs the activities of nations around the world still.

In December of 1862, Lincoln was working on the Emancipation Proclamation and foresaw that problems might readily attend the freeing of the slaves, which was to be the pinnacle of his presidency.  Being a student of politics and philosophy, Lieber was asked to put such a code or operating document together which would work in the aftermath of emancipation and the number of black soldiers and prisoners, as well as civilians. And he did it in four short months.

Emancipation may have brought freedom to black slaves but it carried with it some other baggage – the Confederate President, Jefferson Davis had announced that the South would handle black Union soldiers as criminals, not as soldiers, thereby making them subject to re-enslavement if they were captured, as well as possible execution. Lincoln felt this was wrong.

The Code is born

The new Code, headed “Instructions for the Government of Armies of the United States in the Field,” officially recognized as General Order No. 100, issued by the president on April 24, 1863, also insisted on the ethical, humane, treatment of all civilian populations in those areas which had been occupied by the Northern troops. The old time practice of “giving no quarter” to the enemy, which translated into the ability to kill prisoners of war was no longer permissible.

It also provided that there would be no difference in the treatment of black and white soldiers; the same rights would protect all. Incidentally, torture of any sort was also prohibited.

There was a minor caveat contained, however.  As long as the civilians did not resist military authority, those people would be properly treated.  But if they violated them by taking up arms with some of the still extant guerrilla groups, then they subjected themselves to much sterner actions, including the assessing of hefty fines, and their property could be either destroyed or confiscated without any payment, as well as taking such individuals as prisoners, and in extreme cases, executing them. “Fix them Rebels,” one can almost hear them saying.

And when those same leaders considered the provisions for black soldiers, to many citizens it simply emphasized one of the Union’s more unpopular decisions.  This was to end all prisoner exchanges as long as their Southern counterparts refused to exchange black prisoners on the same terms with white ones.

Lieber’s Code or Lincoln’s?

In 2013, in a time when the Geneva Convention with its several updatings and protocols, going back to 1864, and even the old Hague Convention remain in effect, Lieber’s Code could be easily dismissed in importance.  William Tecumseh Sherman, leading Union General and not one given to any degree of compassion toward the enemy, surely gave little notice to the Lieber Code, a fact that has not gone un-noticed by many historians. No one was going to call him on the carpet.

Many referred to it as “Lincoln’s Code.” It has remained the forerunner of legislation and codes of conduct for the past 150 years. Yet today the contribution of the scholarly Franz Lieber has been left unheard of, and is rarely spoken of in Civil War discussions. No stamp was issued in its honor, no flags were raised, and while it may make an interesting question on Jeopardy, it has basically sunk into oblivion except for a few scholarly attorneys, and trivia buffs.

Read more of Martha’s columns at The Civil War at the Communities at the Washington Times. Follow her on Face Book or LinkedIn at Martha Boltz, and by email at

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Martha Boltz

Martha Boltz was a frequent contributor to the long-running Civil War features in The Washington Times America At War section in both print and online editions. A regular contributor to the original Civil War Page and its successor page dating back to 1994, she is a civil war buff, historian, and writer. "Someone said that if we don't learn about the past, we are condemned to repeat it," she said, "and there are lessons of all sorts inherent in this bloody four-year period of our country's history." She is a member of several heritage and lineage groups, as well as the Montgomery County Civil War Round Table. Her standing invitation is, "come on down - check the blog - send me your comments and let's have fun with its history and maybe learn something at the same time."