April 24, 1863 – U.S. Issues Code of Conduct for Warring Combatants

On this day in history, President Lincoln signed the Instructions for the Government of Armies of the United States in the Field, General Order № 100, popularly known as the Lieber Instructions, because they were prepared by Francis Lieber.

Professor Francis Lieber

Professor Francis Lieber

Lieber had fought for Prussia in the Napoleonic Wars and later became a Professor of History and Political Economy at South Carolina College (what later became Columbia University). In 1857 he moved north to Columbia Law School where he taught International Law and Civil and Common Law until his death in 1872. He published his series of lectures on the laws and usages of war as “International Law, or, Rules Regulating the Intercourse of States in Peace and War.”

During the American Civil War, Lieber’s three sons were all serving (two for the Union and one for the Confederacy). While in St. Louis searching for one of his sons who had been wounded, Lieber met Union General Henry Halleck, and when Halleck became General-in-Chief in July, 1862, Halleck solicited Lieber’s views on some of the knottier questions presented by war. Secretary of War Edwin Stanton also looked to Lieber for advice. Thus Halleck and Stanton decided to invite Lieber to Washington to sit on a committee to revise the 1806 Articles of War.

Henry Halleck

Henry Halleck

The standards were deemed necessary because the large armies required by the Civil War were made up mostly of untrained volunteers, and often commanded by officers who had no familiarity with established military procedure, rights and duties of officers, treatment of soldiers and civilians, and so on. A lot of confusion and conflicting orders were issued, which frequently had to be rescinded.

Lieber did most of the writing for the new set of rules for armies in the field, and Halleck edited the draft to make sure nothing conflicted with Lincoln’s policies. Then Lincoln issued them on this day in history.

The document included considerations for ethical behavior, insisting on humane treatment of civilian populations in occupied areas. It was the first expressly codified law that forbade giving “no quarter” to the enemy (i.e., killing prisoners of war), except in such cases when the survival of the unit that held these prisoners was threatened. It forbade the use of poisons, stating that use of such puts any force who uses them entirely outside the pale of the civilized nations and peoples; it forbade the use of torture to extract confessions; it described the rights and duties of prisoners of war and of capturing forces. It described the state of war, the state of occupied territories, the ends of war, and discusses permissible and impermissible means to attain those ends; it discussed the nature of states and sovereignties, and insurrections, rebellions, and wars.

The Lieber Code also defended the lawfulness of Emancipation under the laws of war and insisted that those same laws prohibited discrimination on the basis of color among combatants.

European jurists and treaty negotiators picked up Lieber’s text and used it as the basis for negotiations that ultimately formed the basis of the Hague Conventions of 1899 and 1907. Some of its harsher measures were abolished by the Third and Fourth Geneva Conventions, however.

You can read the full text of the Lieber Code here.

lieber_code004 copy_outline

April 18, 1949 – Ireland Leaves the Commonwealth of Great Britain

On this day in history, the Irish Parliament officially became a republic, pursuant to the Republic of Ireland Act passed on December 21, 1948.

The Act was scheduled to come into force on April 18 which was the 33rd anniversary of the Easter Rising. (The Easter Rising was an armed insurrection by Irish republicans that began in Ireland during Easter Week, 1916 with the aim of ending British rule in Ireland. The British were able to suppress the Rising quickly, and most of the leaders were executed. This creation of martyrs only fed support for republicanism, eventually leading to a war of independence. The cause was aided immeasurably by the 1921 publication by William Butler Yeats of his poem “Easter, 1916” in which he wrote about the leaders who were killed):

I write it out in a verse –

MacDonagh and MacBride

And Connolly and Pearse

Now and in time to be,

Wherever green is worn,

Are changed, changed utterly:

A terrible beauty is born.”

You can read the entire poem here.

On June 2, 1949, the British Parliament passed The Ireland Act recognizing Ireland and Northern Ireland as constitutional entities.

You can see the latest amended version of the Act here.

ei-150

The Legal Legacy of Slavery

On March 15, 2015, Edward Ball, author of Slaves in the Family had an excellent opinion piece in the “New York Times” in which he discusses the enduring legacy of slavery. He wrote:

In popular memory – in white memory – the plantations of the antebellum South were like a necklace of country clubs strewn across the land.”

Certainly this is the popular conception promulgated by the widely-read book and widely-seen movie “Gone With the Wind.” But as Ball clarifies:

In reality, they were a chain of work camps in which four million were imprisoned. Their inhabitants, slaves, were very much survivors, in the Holocaust sense of that word.”

But, he notes, people claim that was in the distant past, and everything has changed. He proposes a thought experiment:

If by some method of time travel the former slaves and slaveholders of [any] plantation could be brought face to face with us, they would not find our world entirely alien. In place of the rural incarceration of four million black people, we have the mass incarceration of one million black men. In place of laws that prohibited black literacy throughout the South, we have campaigns by Tea Party and anti-tax fanatics to defund public schools within certain ZIP codes. And we have stop-and-search policing, and frequently much worse, in place of the slave patrols.”

Importantly, he brings up the findings of the U.S. Department of Justice in its investigation of Ferguson, Missouri.

As the “New York Times” reported:

Ferguson, Mo., is a third white, but the crime statistics compiled in the city over the past two years seemed to suggest that only black people were breaking the law. They accounted for 85 percent of traffic stops, 90 percent of tickets and 93 percent of arrests. In cases like jaywalking, which often hinge on police discretion, blacks accounted for 95 percent of all arrests.

The racial disparity in those statistics was so stark that the Justice Department has concluded in a report scheduled for release on Wednesday that there was only one explanation: The Ferguson Police Department was routinely violating the constitutional rights of its black residents.”

As Slate captioned this picture:  "The Ferguson Police Department seems unaware of the First Amendment. Also the Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth."  Photo by Joe Raedle/Getty Images

As Slate captioned this picture: “The Ferguson Police Department seems unaware of the First Amendment. Also the Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth.” Photo by Joe Raedle/Getty Images

And although blacks were twice as likely to be searched as white citizens, blacks were 26 percent less likely to have actual contraband.

Ball adds:

…according to Attorney General Eric H. Holder Jr., the courts of the largely black and yet white-run town use arrests and fines against African-Americans to raise revenue and keep the city budget from falling into deficit.”

He emphasizes that it is hard to imagine Ferguson is alone in its discriminatory practices.

Even if such behavior is more widespread, is this the same as antebellum treatment of blacks? No, Ball answers, that would be an overstatement. Nevertheless:

…lying behind such recent events is a mentality that originates during the slave period, and provides police action with an unconscious foundation. A mentality that might be called part of the legacy of slavery.”

March 26, 2004 – John Roberts Makes the Case For Judicial Minimalism

On this day in history, the United States Court of Appeals, District of Columbia Circuit, decided the case of PDK Laboratories v. U.S. Drug Enforcement Administration (362 F.3d 786, 2004).

John Roberts, now Chief Justice of the U.S. Supreme Court but then serving on the Court of Appeals, concurred in part with the judgment filed by Circuit Judge Randolph in a case involving the DEA’s interpretation of the regulation of ephedrine.

Chief Justice John Roberts

Chief Justice John Roberts

Judge Roberts wrote in his concurrence:

I agree with the majority that PDK has standing to seek review of DEA’s suspension order, and that the order must be vacated because it relies, in significant part, upon a conclusion that PDK violated certain export notification regulations — a conclusion that contradicted relevant agency precedent without explanation. This much is not terribly controversial; DEA conceded its error and all but conceded that this court should remand the decision on that basis. See DEA Br. 59 (“we acknowledge that, in such circumstances, the ordinary practice would be a remand to the agency”). This is a sufficient ground for deciding this case, and the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more — counsels us to go no further. [emphasis added]

My brethren, however, are not content with this narrow and effectively conceded basis for disposition, and instead adopt an alternative ground of far broader significance, one that precipitates disagreement among us but at the end of the day leads to the same result — vacatur and remand to the agency. I cannot go along for that gratuitous ride.”

As Chief Justice, Roberts has continued to follow the advice with which he began and ended his partial concurrence in PDK Laboratories:

I end where I began — with regret that the majority feels compelled to address far-reaching questions on which we disagree, when they are wholly unnecessary to the disposition of the case. As Justice Frankfurter once put it: ‘These are perplexing questions. Their difficulty admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.’ Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 372-73, 75 S.Ct. 845, 850, 99 L.Ed. 1155 (1955).”

March 24, 1953 – Langston Hughes Testifies Before Senator Joseph McCarthy

Joseph Raymond McCarthy (November 14, 1908 – May 2, 1957) was an American politician who served as a Republican U.S. Senator from Wisconsin from 1947 until his death in 1957. He was most notable for making claims that there were large numbers of Communists and Soviet spies and sympathizers inside the federal government and elsewhere. With Republicans taking control of the Senate in 1953, McCarthy became Chairman of the Committee on Government Operations and the Subcommittee on Investigations. In this capacity, he held hearings (later known as the Army-McCarthy Hearings because of McCarthy’s investigation of the Army Signal Corps), during which he called 395 witnesses to testify against themselves and others.

Senator Joseph McCarthy

Senator Joseph McCarthy

African-Americans who vocalized objections to the treatment of blacks in America were considered suspect by McCarthy (and by the FBI). Two of the witnesses called to appear before McCarthy were black: the political activist Eslanda Robeson, wife of Paul Robeson, and the poet Langston Hughes. (At the time of the hearings, there were few blacks in influential positions.)

On March 24, 1953, Langston Hughes testified before the Subcommittee. He was permitted to read a statement to defend himself from charges of Soviet sympathies. He began by stating “I was born a Negro.” He went on to delineate just what that meant in American society at that time. He could not attend the nearby school, the movie theater wouldn’t admit him, white boys stoned him, and his father left the country because this country would not admit him to the bar. At his high school, primarily attended by very poor immigrants, follow students began to tell him about Eugene Debs, a well-known socialist in the early 1900’s. Hughes stated:

“I became interested in whatever I could read that Debs had written or spoken about. I never read the theoretical books of socialism or communism or the Democratic or Republican party for that matter, and so my interest in whatever may be considered political has been non-theoretical, non-sectarian, and largely really emotional and born out of my own need to find some kind of way of thinking about this whole problem of myself, segregated, poor, colored, and how I can adjust to this whole problem of helping to build America when sometimes I can not even get into a school or a lecture or a concert or in the South go the library and get a book out.”

Langston Hughes

Langston Hughes

He went on in this vein for a little longer, but by then, the Senators realized they were better off without tackling Hughes. The Subcommittee dismissed him.

Throughout the early 1950s, McCarthy continued to make accusations of communist infiltration of the U. S. government. In August, 1954, a Senate committee was formed to investigate censuring McCarthy. In December, the Senate voted 67-22 to condemn McCarthy, calling his behavior as a committee chairman “inexcusable,” “reprehensible,” and “vulgar and insulting.” Though he remained in the Senate, McCarthy thereafter was largely ignored by the Congress, the White House, and most of the media.

The term “McCarthyism,” coined in 1950 in reference to McCarthy’s practices, was soon applied to similar anti-communist pursuits. Today the term is used more generally to refer to public attacks on the character or patriotism of political opponents.

The McCarthy Committee might have saved themselves some embarrassment by reading the poetry of Langston Hughes before calling upon him to testify.

Democracy will not come
Today, this year
Nor ever
Through compromise and fear.

I have as much right
As the other fellow has
To stand
On my two feet
And own the land.

I tire so of hearing people say,
Let things take their course.
Tomorrow is another day.
I do not need my freedom when I’m dead.
I cannot live on tomorrow’s bread.

Freedom
Is a strong seed
Planted
In a great need.

I live here, too.
I want freedom
Just as you.

Langston Hughes, Democracy, 1949

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March 7, 1850 – Daniel Webster Says Lets Not Worry About Slavery; Union is More Important

On this day in history, the famous Whig Senator from Massachusetts spoke in Congress in favor of the “Compromise of 1850” which allowed California into the Union as a free state in exchange for a stronger Fugitive Slave Act.

Senator Daniel Webster

Senator Daniel Webster

Webster, to the shock of his fellow northerners, criticized opponents of the Fugitive Slave Law, advising them they had a constitutional duty to return slaves who had escaped into the free states, saying:

No man fulfills his duty in any legislature who sets himself to find excuses, evasions, escapes from this constitutional obligation.”

Webster claimed slavery was a matter of historical reality rather than a moral question. He strove to avoid a civil war and to preserve the Union. To that end, he concluded:

And now, Mr. President, instead of speaking of the possibility or utility of secession, instead of dwelling in those caverns of darkness, instead of groping with those ideas so full of all that is horrid and horrible, let us come out into the light of day; let us enjoy the fresh air of Liberty and Union; let us cherish those hopes which belong to us; let us devote ourselves to those great objects that are fit for our consideration and action; let us raise our conceptions to the magnitude and the importance of the duties that devolve upon us; let our comprehension be as broad as the country for which we act, our asperations as high as its certain destiny; let us not be pigmies in a case that calls for men.”

Unfortunately, he meant only for whites not to dwell in “caverns of darkness” and only for whites to “enjoy the fresh air of Liberty and Union.”

Northern abolitionists were incensed, convinced Webster had sold out moral principles for a chance to appease Southerners and northern textile merchants in order to win the presidency. (In fact, several hundred New York businessmen sent him a letter of thanks and a gold watch.)

On March 11 New York Senator William H. Seward countered Webster with his “Higher Law” speech, thundering out the moral precepts that Webster seemed to have abjured.

But there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same noble purposes. … I cannot stop to debate long with those who maintain that slavery is itself practically economical and humane. I might be content with saying that there are some axioms in political science that a statesman or a founder of states may adopt, especially in the Congress of the United States, and that among those axioms are these: That all men are created equal, and have inalienable rights of life, liberty, and the choice of pursuits of happiness; that knowledge promotes virtue, and righteousness exalteth a nation; that freedom is preferable to slavery, and that democratic governments, where they can be maintained by acquiescence, without force, are preferable to institutions exercising arbitrary and irresponsible power.”

William Seward, 1851

William Seward, 1851

March 4, 1909 – Newly Elected President Taft Applauds the End of Racism in the South

On this day in history, a mere twelve years after the Supreme Court sanctioned racial segregation in public facilities in Plessy v. Ferguson, William Howard Taft delivered his inaugural address, speaking in depth about all the progress made in the South toward the rights of African Americans.

U.S. President, William Howard Taft, center, reviewing the parade after his inauguration as 
President March 4, 1909.

U.S. President, William Howard Taft, center, reviewing the parade after his inauguration as 
President March 4, 1909.

The new president assured his fellow Americans, in a variation of “some of my best friends are blacks”:

I have not the slightest race prejudice or feeling, and recognition of its existence only awakens in my heart a deeper sympathy for those who have to bear it or suffer from it, and I question the wisdom of a policy which is likely to increase it.”

He then discussed the Fifteenth Amendment (which granted African American men the right to vote by declaring that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”).

President Taft admitted that the fifteenth amendment had not been generally observed in the past, but “the tendency of Southern legislation today is toward the enactment of electoral qualifications which shall square with that amendment.”

When President Taft took office, however, as Ira Katznelson observes in his book Fear Itself: The New Deal and the Origins of Our Time,

By 1908, the South had perfected a political system to guard white supremacy successfully even in counties with black majorities. A host of mechanisms ensured virtually no chance to vote for African-Americans, and a low-turnout franchise for white citizens. These devices included white primaries, declarations that political parties were restricted private clubs, poll taxes, property tests, literacy tests, and understanding clauses that tested for arcane knowledge of the provisions in state constitutions.”

%22Colored%22_drinking_fountain_from_mid-20th_century_with_african-american_drinking

In fact, throughout the years since 1900, racial conflict had plagued the nation. Some of the better known race riots include incidents in New Orleans, Louisiana in 1900, Springfield, Ohio in 1904, Brownsville, Texas, in 1906 and Springfield, Illinoisin 1908.

Legislation designed to solify “Jim Crow” practices in the South also proliferated in this time period, such as anti-miscegenation laws (Alabama, 1901; Florida, 1903, Mississippi 1906, Louisiana, 1908), as well as provisions mandating separation of schools and public accommodations. The Ku Klux Klan was also gaining ground again in the South, destined to reach its peak in the 1920s.

jim-crow-laws

President Taft contradicted himself in the speech, by acknowledging that “race feeling” is in some instances “widespread and acute.” He counseled that in those circumstances, however, governments should avoid exacerbating the problem by appointing members of the negro race to local public offices. This might, after all, “interfere with the ease and facility with which the local government business can be done by the appointee.”

Above all, Taft insisted:

…so long as the statutes of the States meet the test of [the Fifteenth Amendment] and are not otherwise in conflict with the Constitution and laws of the United States, it is not the disposition or within the province of the Federal Government to interfere with the regulation by Southern States of their domestic affairs.”

President William Howard Taft.

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