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Enemy Women and the Laws of War in the American Civil War

Published online by Cambridge University Press:  11 August 2017

Stephanie McCurry
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Extract

One of the most important legacies of the American Civil War, not just in the re-united States of America but also in the nineteenth and twentieth century world, were the new laws of war that the conflict introduced. “Lieber's Code,” named after the man who authored it for the Lincoln administration, was a set of instructions written and issued in April 1863 to govern the conduct of “the armies of the United States in the field.” It became a template for all subsequent codes, including the Hague and Geneva conventions. Widely understood as a radical revision of the laws of war and a complete break with the Enlightenment tradition, the code, like the war that gave rise to it, reflected the new post-Napoleonic age of “people's wars.” As such, it pointed forward, if not as the expression of the first total war, then at least as an expression of the first modern one, with all the blurring of boundaries that involved.

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Law and History Review , Volume 35 , Issue 3 , August 2017 , pp. 667 - 710
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Copyright © the American Society for Legal History, Inc. 2017 

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Footnotes

She thanks Rande Kostal of the University of Western Ontario Law School, the three anonymous manuscript reviewers for the journal, and colleagues at the University of Pennsylvania and Columbia University legal history workshops for critical feedback on the article. She also thanks her honors student, Serena Covkin, for research assistance in the early stages of the project.

References

1. Quoted in Fellman, Michael, Inside War: The Guerilla Conflict in Missouri During the American Civil War (New York: Oxford University Press, 1989), 203Google Scholar.

2. General Orders No. 100, “Instructions for the Government of Armies of the United States in the Field,” prepared by Francis Lieber, LL.D., War Department, Adj. General's Office, Washington, April 24, 1863, in United States War Department, The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies (Washington, DC, 1880–1901)Google Scholar (hereafter cited as O.R.), ser. 3, vol. 3, 148–164, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/124/0148 (June 15, 2015); and Best, Geoffrey, Humanity in Warfare (New York: Columbia University Press, 1980), 171Google Scholar;  see also Freidel, Frank, Francis Lieber: Nineteenth Century Liberal (1947; reprint, Gloucester, MA: P. Smith, 1968), 387–417 Google Scholar.

3. On Lieber's Code in the history of the laws of war, see Best, Humanity in Warfare, 206–11; Kinsella, Helen M., The Image Before the Weapon: A Critical History of the Distinction between Combatant and Civilian (Ithaca: Cornell University Press, 2011)Google Scholar; and Witt, John Fabian, Lincoln's Code: The Laws of War in American History (New York: Free Press, 2012)Google Scholar.  The Germans called it “Volkskrieg,” war of peoples.  On Napoleonic War as inaugurating the age of “total war,” see Bell, David, The First Total War: Napoleon's Europe and the Birth of Warfare as We Know It (Boston: Houghton Mifflin Co., 2007)Google Scholar.  On debate about the American Civil War, see Grimsley, Mark, The Hard Hand of War: Union Military Policy Toward Southern Civilians, 1861–1865 (New York: Cambridge University Press, 1995)Google Scholar; and Neely, Mark E. Jr., The Civil War and the Limits of Destruction (Cambridge, MA: Harvard University Press, 2007)Google Scholar.

4. Best, Humanity in Warfare, 265; and Kinsella, The Image Before the Weapon, 2, 3.

5. Witt, Lincoln's Code, 233. Witt deals with the distinction, but not with its embedded assumptions about gender.

6. De Vitoria, Francisco, “On the Law of War,” in Political Writings, ed. Pagden, Anthony and Lawrance, Jeremy (New York: Cambridge University Press, 1991), 293–327 Google Scholar, esp. Question 3, 314–17; Hugo Grotius (trans. Francis W. Kelsey), De jure belli ac pacis libri tres (The Laws of War and Peace), reprinted in Classics of International Law (Oxford: Clarendon Press, 1925)Google Scholar, vol. 2, bk. 3, ch. 11, 733–35 (quotation at 733); and Emer de Vattel, The Law of Nations: Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin of Nature and Natural Law and on Luxury, 1797. (quotation bk. 3, chap. 8, S72) http://oll.libertyfund.org/title/2246 (September 15, 2011), bk. 3, chap. 8, S145, S147; Vattel writes of “women, children, feeble old men, and sick persons” that “we have no right to …use any violence against them,” a principle he says of all “civilized” nations; Lieber, General Orders No. 100, O.R., ser. 3, vol. 3, art. 19, and especially art. 37.

7. The term “gender and innocence” comes from Kinsella, The Image Before the Weapon, 54.  Best, Humanity in Warfare, 55.

8. Kinsella, The Image Before the Weapon, 3, 83, on self–evidence, at 22; and Christine de Pizan, The Book of Deeds of Arms and of Chivalry (cited in Kinsella, The Image Before the Weapon,  47). Grotius, De jure belli, vol. 2, bk. 3, ch. 11, 734–35.

9. Vattel, The Law of Nations, bk. 3, ch. 8, S145; Grotius, De jure belli, bk. 3, ch. 6, 646, ch. 11, 734, 735; Henry W. Halleck, International Law; Or, Rules Regulating the Intercourse of States in Peace and War (San Francisco:  H.H. Bancroft & Co., 1861), 428; Article 37, in General Orders No. 100, O.R., ser. 3, vol. 3, 152, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/124/0152 (June 22, 2015); and Article 102, in General Orders No. 100, O.R., ser. 3, vol. 3, 159, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/124/0159 (June 22, 2015. Women are innocents to be spared in war, Grotius wrote, “unless they have been guilty of an extremely serious offence” or “take the place of men.”

10. Major-General William Tecumseh Sherman to Major-General Henry Wager Halleck, December 24, 1864, O.R., ser. 1, vol. 44, 799, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/092/0799 (June 15, 2015); William T. Sherman to John Sherman, September 22, 1862, in The Sherman Letters: Correspondence between General and Senator Sherman from 1837 to 1891, ed. Thorndike, Rachel (New York: C. Scribner's Sons, 1894)Google Scholar, 162.

11. Lieber quoted in Witt, Lincoln's Code, 170; Lieber to Halleck, October 3, 1863, Box 28, Francis Lieber Papers, 1815–1888, Huntington Library (hereafter FLP, HL,); Lieber to Halleck, June 13, 1864, Box 28, FLP, HL; and Hartigan, Richard Shelly, ed., Lieber's Code and the Law of War (Chicago: Precedent, 1983), 77Google Scholar.  Lieber himself makes the distinction between “Volkskrieg” or war of peoples, and war of cabinets. David Bell describes “cabinet wars” as set piece battles between standing professional armies. See Bell, The First Total War.

12. Witt, Lincoln's Code, 4, 241, and throughout.

13. Best, Humanity in Warfare, 180.  For discussions about the necessity for the code, citing a wide range of issues, see Lieber to Halleck, February 7, 1862 November 13, 1862, December 31, 1862, Box 27, and Halleck to Lieber, November 15, 1862, Box 9, FLP, HL. Lieber had already prepared two memoranda at the request of War Department on guerilla warfare and on the use of free blacks and fugitive slaves in the Union Army.  See Lieber to Halleck, n.d. [in response to letter of August 6, 1862], O.R., ser. 3, vol. 2, 301–9, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/123/0301 (June 16, 2015); and “A Memoir to Mr. Secretary Stanton,” enclosed in Lieber to Halleck, August 10, 1862, Box 27, FLP, HL. Witt acknowledges that “the warrant for violence was daunting” but the implications for the distinction is not his concern; Witt, Lincoln's Code, 234, 241.

14. Kinsella, The Image Before the Weapon, 84, 88–89.  Where it gave way, she argues, was where discourses of civilization trumped those of gender, as in the indiscriminate massacre of Cheyenne and Arapaho women and children by the Union Army at Sand Creek, Colorado in November 1864; Kinsella, Image Before the Weapon, 82–104.

15. Kinsella, The Image Before the Weapon, 136. On the Algerian War as prototype of wars of decolonization, see Horne, Alistair, A Savage War of Peace: Algeria 1954–1962 (New York: Viking Press, 1977)Google Scholar.

16. Sophocles (Fagles, Robert, trans.) The Three Theban Plays:  Antigone, Oedipus the King, Oedipus at Colonus (New York:  Viking Press, 1982)Google Scholar; and Fellman, Inside War, 203.

17. The phrase “hard war” is Sherman's.  See Sherman to Halleck, December 24, 1864, O.R., ser. 1, vol. 44, 799, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/092/0799 (June 15, 2015).

18. Fellman, Inside War, 203.

19. Kerber, Linda, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998)Google Scholar; Kerber, , “The Paradox of Women's Citizenship in the Early Republic:  The Case of Martin vs. Massachusetts, 1805,” in Toward an Intellectual History of Women, ed. Kerber, Linda, (Chapel Hill:  University of North Carolina Press, 1997), 261–302 Google Scholar; and Kerber, , “A Constitutional Right to Be Treated Like American Ladies: Women and the Obligations of Citizenship,” in U.S. History as Women's History, ed. Kerber, Linda, Kessler-Harris, Alice, and Sklar, Kathryn Kish (Chapel Hill: University of North Carolina Press, 1995), 17–35 Google Scholar.  On the normative status of adult women as wives—even those who were unmarried (widows, for example)—see Dubler, Ariela R., “In the Shadow of Marriage:  Single Women and the Legal Construction of the Family and the State,” The Yale Law Journal 112 (2003): 1641–1715 Google Scholar.  On the contradiction of the citizen-wife see the review essay by McCurry, Stephanie, Signs: Journal of Women in Culture and Society 30 (2005): 1659–70Google Scholar.

20. Hartog, Hendrik, Man and Wife in America:  A History (Cambridge, MA: Harvard University Press, 2000)Google Scholar, quotation at 263.

21. A point developed powerfully by Cott, Nancy, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000), 7Google Scholar and throughout; and Gordon, Sarah Barringer, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 2002), 4Google Scholar and throughout.  See also, Dubler, “In the Shadow of Marriage.”  Lawmakers, she says, look “to marriage as a public policy tool capable of privatizing women's economic dependency,” at 1654.

22. Hartog, Man and Wife, 100.

23. Kerber, Linda K. has revisited the Martin case repeatedly since she first treated it in Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill: UNC Press, 1980), 133–36Google Scholar. The fullest account is in No Constitutional Right to be Ladies, Chapter 1, but she also offers a sharp account in “The Paradox of Women's Citizenship.”  For the Sullivan quote see “Paradox,” 292; for Sedgwick, see “Paradox,” 294 (“Was she considered a criminal because…she did not, in violation of her marriage vows, rebel against the will of her husband?”); “Paradox,” 301; “Paradox,” 289 (“What aid can they give to an enemy?”).  “The story of Martin vs. Massachusetts suggests that the early national period was Thermidorean,” “Paradox,” 301.  Shanks v Dupont in 1830 rendered a different decision, but was quickly reversed.  See Kerber, “Paradox,” 298–301.

24. John Adams to James Sullivan, May 26, 1786, in The Feminist Papers: From Adams to de Beauvoir, ed. Rossi, Alice S. (Boston: Northeastern University Press, 1988), 13–14 Google Scholar.

25. Lieber to Senator Calhoun, John C. in The Life and Letters of Francis Lieber, ed. Perry, Thomas Sergeant (Boston: James R. Osgood and Co., 1882), 230Google Scholar; Lieber, Francis, Manual of Political Ethics, Designed Chiefly for the Use of Colleges and Students at Law, vol. 1, ed. Woolsey, Theodore D. (1838; reprint, Philadelphia: J. B. Lippincott & Co., 1911), 138–40Google Scholar; and Lieber, Francis, Manual of Political Ethics, Designed Chiefly for the Use of Colleges and Students at Law, Vol. II (1838; reprint, Boston: C. C. Little and J. Brown, 1911), 253, 269–270 Google Scholar, 254, 259–60. See also clippings and notes in folder “Women's Suffrage,” FLP, HL.  For references to Mary Wollstonecraft (named in the text) and Angelina Grimke (unnamed) see Lieber, Manual of Political Ethics, II:267.  The reference is clearly to Grimke, Letters to Catherine Beecher, Letter XII. See also Lieber's 1867 article on the New York State Constitution about how men and women established the family “whence the state arise, not only in primeval time, but every day anew”: Lieber, Francis, “Reflections on the Changes Which May Seem Necessary in the Present Constitution of the State of New York, Elicited and Published by the New York Union League Club, May, 1867,” in The Miscellaneous Writings of Francis Lieber, Vol. II: Contributions to Political Science, Including Lectures on the Constitution of the United States and Other Papers, ed. Gilman, Daniel Coit (Philadelphia: J. B. Lippincott & Co., 1881), 181–219 Google Scholar. On “the family as the social institution prior to all states,” 208.  On Lieber's biography see Freidel, Francis Lieber.  Grotius's views are particularly interesting.  The parts of Book II where they are laid out are often excised from modern editions.  Grotius, De jure belli, bk. 2, ch. 5, 231–53.

26. Siegel, Reva B., “She the People:  The Nineteenth Amendment, Sex Equality, Federalism and the Family,” Harvard Law Review 116 (2002): 982Google Scholar; and “The Modernization of Marital Status Law: Adjudicating Wives’ Right to Earnings, 1860–1930,” (1995). Faculty Scholarship Series, Paper 1093, 2127–30 and throughout.  See also Hartog, Man and Wife in America; and Dubler, “In the Shadow of Marriage,” 1654.  Kristin Collins has demonstrated how women's legal status changed in the antebellum period, “while leaving the basic principles of coverture intact.”  See Collins, “‘Petitions without Number:’ Widows’ Petitions and the Early Nineteenth Century Origins of Public Marriage-Based Entitlement.” Law and History Review 31 (2013): 1–60 Google Scholar.  On divorce, see Basch, Norma, Framing American Divorce:  From the Revolutionary Generation to the Victorians (Berkeley:  University of California Press, 1999)Google Scholar; on married women's property rights, see Lebsock, Suzanne, “Radical Reconstruction and the Property Rights of Southern Women,” Journal of Southern History 43 (1977): 195–216 Google Scholar; and Shammas, Carole, “Re-Assessing the Married Women's Property Acts,” Journal of Women's History 6 (1994): 9–30 Google Scholar; and for one document suggesting the extent of radical demands for women's political rights, see “Declaration of Sentiments,” in The Feminist Papers, 413–20.  The literature on the woman's rights movement is substantial but for one excellent account, see Stansell, Christine, The Feminist Promise:  1792 to the Present (New York: Modern Library, 2010), ch. 4Google Scholar.

27. An issue developed in McCurry, Stephanie, Confederate Reckoning: Power and Politics in the Civil War South (Cambridge, MA: Harvard University Press, 2010)Google Scholar.

28. For the term “violent secessionism” see Williams, G. Mott, “Letters of General Thomas Williams, 1862,” American Historical Review 14 (1909): 320Google Scholar. On women's reputation, see also Ash, Stephen V., When the Yankees Came: Conflict and Chaos in the Occupied South, 1861–1865 (Chapel Hill: The University of North Carolina Press, 1995), 42–43 Google Scholar; Royster, Charles, The Destructive War: William Tecumseh Sherman, Stonewall Jackson, and the Americans (New York: Vintage Books, 1993), 86–87 Google Scholar; Faust, Drew Gilpin, Mothers of Invention: Women of the Slaveholding South in the American Civil War (Chapel Hill: The University of North Carolina Press, 1996)Google Scholar; and Women's Loyal National League, Proceedings of the Meeting of the Loyal Women of the Republic, Held in New York, May 14, 1863 (New York: Phair and Co., 1863)Google Scholar. For a fuller treatment of the issue of women spies and the protection accorded Confederate women see McCurry, Confederate Reckoning, ch. 3.

29. Quoted in Royster, Destructive War, 86–87.

30. On race, civilization, and the distinction in the American Civil War, see Kinsella, The Image Before the Weapon, 82–103.  On the Sand Creek massacres see also Kelman, Ari, A Misplaced Massacre:  Struggling Over the Memory of Sand Creek (Cambridge, MA:  Harvard University Press, 2013)Google Scholar.  My comments on African-American refugees draw on the forthcoming book by Thavolia Glymph (manuscript in possession of the author).

31. General Orders No. 46, Department of the Missouri, St. Louis, February 22, 1862, O.R., ser. 1, vol. 8, 563–64, eHistory at The Ohio State University  http://ehistory.osu.edu/books/official-records/008/0563 (June 15, 2015).

32. Halleck, International Law, 73–74, 375–79, 427–28.  On Halleck, see Marszalek, John F., Commander of All Lincoln's Armies:  A Life of General Henry W. Halleck (Cambridge, MA: Harvard University Press, 2004)Google Scholar, 98 and throughout.

33. Halleck, International Law, 73–74, 375–79, 427–28.

34. Desastres, collection of originals held at Bellas Artes Museum, Madrid (consulted Summer 2014). For publication history see Fraser, Ronald, Napoleon's Cursed War: Popular Resistance in the Spanish Peninsular War, 1808–1814 (New York: Verso, 2008)Google Scholar.

35. General Orders No. 28, Department of the Gulf, New Orleans, May 15, 1862, O.R., ser. 1, vol. 15, 426, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/021/0426 (accessed Jun. 15, 2015). Butler vowed to treat offenders as he would any “woman of the town plying her avocation;” Butler, Benjamin F., Butler's Book: Autobiography and Personal Reminiscences of Major-General Benj. F. Butler (Boston: A. M. Thayer, 1892), 418Google Scholar. On the military threat, see Butler to J.G. Carney, July 2, 1862, in Butler, Benjamin F., Letters of Butler (Norwood: Plimpton Press, 1917), 2:35–36 Google Scholar; Williams, “Letters of General Thomas Williams,” 320–32.   Sherman had the same view of elite women from his time in St. Louis; see Fellman, Michael, Citizen Sherman: A Life of William Tecumseh Sherman (New York: Random House, 1995)Google Scholar.

36. Phipps, Sheila, Genteel Rebel: the life of Mary Greenhow Lee (Baton Rouge: Louisiana State University Press, 2004), 159Google Scholar and throughout. Mahon, Michael G., ed. Winchester Divided: The Civil War Diaries of Julia Chase and Laura Lee (Mechanicsburg, PA: Stackpole Books, 2002)Google Scholar.

37. Davis to Lee, July 31, 1862, in The Papers of Jefferson Davis, vol. 8: 1862, ed. Crist, Lynda L., Dix, Mary S., and Williams, Kenneth H. (Baton Rouge:  Louisiana State University Press, 1995), 310Google Scholar.

38. General Orders No. 41, Department of the Gulf, New Orleans, June 10, 1862, O.R., ser. 1, vol. 15, 483–84, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/021/0483 (June 15, 2015); Major-General Benjamin F. Butler to Secretary of War Edwin M. Stanton, June 17, 1862, O.R., ser. 3, vol. 2, 159, eHistory at The Ohio State University, http://ehistory.osu.edu/books/official-records/123/0159 (June 15, 2015) (“rebellious or traitorous acts” quote is in Inclosure No. 4, Butler to Messrs. Cte. Mejan, French Consul; Juan Callejon, Consul de España; Joseph Deynoodt, Consul of Belgium; N. M. Benachhi, Greek Consul; Joseph Lanata, Consul of Italy; B. Teryaghi, Vice-Consul; Al. Piaget, Swiss Consul, Jun. 16, 1862). By August, oaths had been administered to more than 11,000 citizens. For the numbers in New Orleans, see Parton, James, General Butler in New Orleans (New York: Mason Brothers, 1864)Google Scholar. On Winchester, see McDonald, Cornelia Peake, A Woman's Civil War: a Diary with Reminiscences of the War from March 1862 (Madison: University of Wisconsin Press, 1992), 126Google Scholar; and Phipps, Genteel Rebel, 177. For the text of the oath, see General Orders No. 30, Department of the Missouri, St. Louis, April 22, 1863, O.R., ser. 1, vol. 22, pt. 2, 243, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/033/0243 (June 15, 2015).

39. Ash, When the Yankees Came, 60.

40. Linda Kerber notes that oaths of allegiance were not imposed on women during the Revolutionary War. “Although framed in terms of all residents, oaths seem almost always to have been selectively imposed on men.”  Kerber, “Paradox,” 274.

41. Blair, William, With Malice Toward Some: Treason and Loyalty in the Civil War Era (Chapel Hill: University of North Carolina Press, 2014)Google Scholar, 144; and Best, Humanity in Warfare, 114.

42. Constitution of the United States, Article III, Section 3, Archives.gov (July 22, 2016); Blair, With Malice Toward Some, 16, 52, 56 and throughout.  In General Orders No. 1 issued November 25, 1861, Halleck authorized the use of military commissions to try “military offenses” of a treasonable character; he did not yet talk of “military treason.”  Blair makes the important point that popular understandings of treason far exceeded constitutional limits and definitions, and that attempts to punish it were pursued by all three branches of government, state governments, local authorities, and the United States Army.   On treason, see also Willard Hurst, Treason in the United States, reprinted from the Harvard Law Review 58, Nos. 2,3, and 6 (1945), 226–272, 395–444, 806–857; Witt, Lincoln's Code, ch. 9 and 10; and Neely, Mark E. Jr., The Fate of Liberty:  Abraham Lincoln and Civil Liberties (Chapel Hill: University of North Carolina Press, 2011)Google Scholar.

43. See, for example, Report of Major Emory S. Foster, June 17, 1862, O.R., ser. 1, vol. 13, 124–25, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/019/0124 (accessed June 15, 2015). For an excellent comprehensive treatment of guerilla warfare in the Civil War, see Sutherland, Daniel E., A Savage Conflict:  The Decisive Role of Guerrillas in the American Civil War (Chapel Hill: The University of North Carolina Press, 2009)Google Scholar. Michael Fellman's study of guerilla warfare in Missouri is still valuable, not least for its attention to gender matters. See Fellman, Inside War.

44. On Halleck's demand for “written authority … to declare and enforce martial law in this department” (St. Louis) see Louis S. Gerteis, Civil War St. Louis (Lawrence: University Press of Kansas, 2001), 172–74, quotation at 172. Provost marshals were already operating in St. Louis when he took command.  He vowed “to enforce the ‘laws of war”—but increasingly found those laws insufficient for the task.

45. Lieber to Halleck, July 23, 1862, Box 27, FLP, HL, and Halleck to Lieber, August 6, 1862, Box 9, FLP, HL; and Lieber to Halleck, August 6, 1862, O.R., ser. 3, vol. 2,  301, eHistory at The Ohio State University, http://ehistory.osu.edu/books/official-records/123/0301 (June 16, 2015).  Halleck had known Lieber since early 1862, when Lieber wrote to him about the series of lectures on the law of war he was delivering at Columbia College Law School.  See Lieber to Halleck, January 30, 1862, Box 27, FLP, HL.   They became personally acquainted in difficult circumstances soon thereafter, when Lieber sought Halleck's help in finding his son, Hamilton, wounded at the battle of Fort Donelson while serving under Halleck's command.  Lieber to Halleck, February 19, 1862, Box 27, FLP, HL.  The term “enemy civilians and hostile citizens” is from Ash, When the Yankees Came, 51. Blair notes that it was in Missouri that military commanders learned the lesson about “the problems of combatting treason through courts.”  Blair, With Malice Toward Some, 55.  On the confusion, see Witt, Lincoln's Code, 270.

46. Quoted in Sutherland, A Savage Conflict, 58.  On Halleck's experience in Missouri, see Marszalek, Commander of All Lincoln's Armies, 110–11; Sutherland, A Savage Conflict, 58–65; and Fellman, Inside War, 88 and ch. 3.  For an excellent account of women's centrality to guerilla war and a discussion of Ewing's order, see LeeAnn Whites, “Forty Shirts and a Wagonload of Wheat:  Women, the Domestic Supply Line, and the Civil War on the Western Border,” Journal of the Civil War Era 1 (2011): 56–78.  On Confederates’ response to the same problem, see McCurry, Confederate Reckoning, ch. 3.

47. “Guerilla Parties Considered with Reference to the Laws and Usages of War,” in Lieber to Halleck, n.d. (in response to letter of Halleck to Lieber, August 6, 1862), O.R., ser. 3, vol. 2, 304–5, 308–9, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/123/0304 (June 16, 2015).

48. Lieber to Halleck, n.d. (in response to letter of August 6, 1862), O.R., ser. 3, vol. 2, 309, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/123/0309 (June 16, 2015).

49. Halleck to Major-General William S. Rosecrans, March 5, 1863, O.R., ser. 1, vol. 23, pt. 2, 107–9, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/035/0107 (June 16, 2015); and Lieber to Halleck, March 17, 1863, Box 27, FLP, HL.

50. Halleck quoted in Marszalek, Commander of All Lincoln's Armies, 168, and original: Halleck to Major-General Horatio G. Wright, November 18, 1862, O.R., ser. 1, vol. 20, pt. 2, 67–68, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/030/0067_ (June 16, 2015); on the Missouri executions, see Hartigan, Lieber's Code and the Law of War, 87; Wright to Brigadier General Julius White, February 14, 1863, O.R., ser. 1, vol. 23, pt. 2, 69–70, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/035/0069 (June 16, 2015); and Governor James F. Robinson to Wright, March 1, 1863, O.R., ser. 1, vol. 23, pt. 2, 96–97, eHistory at The Ohio State University, http://ehistory.osu.edu/books/official-records/035/0096 (June 16, 2015).  On the effect of the Emancipation Proclamation in Kentucky see Astor, Aaron, Rebels on the Border: The Civil War, Emancipation, and the Reconstruction of Kentucky and Missouri (Baton Rouge: Louisiana State University Press, 2012)Google Scholar.

51. Major-General Joseph J. Reynolds to Rosecrans, February 10, 1863, O.R., ser. 1, vol. 23, pt. 2, 54–57, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/035/0054 (June 16, 2015).

52. Major-General George H. Thomas to Rosecrans, February 11, 1863 and Rosecrans to War Department, February 18, 1863, both O.R., ser. 1, vol. 23, pt. 2, 54–57, eHistory at The Ohio State University  http://ehistory.osu.edu/books/official-records/035/0054 (June 16, 2015). Lieber started drafting General Orders No. 100 in late December 1862.

53. In St. Louis on March 5, one officer reported his discovery of “a large number of women … actively concerned in both secret correspondence and in carrying on the business of collecting and distribution of rebel letters.”  They are the wives and daughters of officers in the rebel service, he emphasized, “avowed and abusive enemies of the government.” See Lieutenant-Colonel and Provost-Marshal-General Franklin A. Dick to Colonel William Hoffman, March 5, 1863, O.R., ser. 2, vol. 5, 319–21, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/118/0319_(June 16, 2015).  For the broader context, see Kristen L. Streater, “‘They Have Five Ladies at Alton’: The Politics of Imprisoning Confederate Women During the Civil War,”  (unpublished paper in possession of author); Streater, Kristen L., “‘She-Rebels’ on the Supply Line:  Gender Conventions in Civil War Kentucky,” in Occupied Women: Gender, Military Occupation, and the American Civil War, ed. Whites, LeeAnn and Long, Alecia P. (Baton Rouge: Louisiana State University Press, 2009), 88–102 Google Scholar; and Lowry, Thomas P., Confederate Heroines: 120 Southern Women Convicted by Union Military Justice (Baton Rouge: Louisiana State University Press, 2006)Google Scholar.  The latter is useful but interpretively unreliable. On St. Louis see also Gerteis, Civil War St. Louis.

54. Lowry, Confederate Heroines, 104, 150; and Streater, “They Have Five Ladies,” 26.

55. On the use of female detectives, see, for example, Colonel A. C. Harding and Colonel Sanders D. Bruce to Rosecrans, February 5, 1863, and Chief of Police Sam Truesdail to Rosecrans, February 13, 1863, O.R. ser. 1, vol. 23, pt. 2, 46, 64, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/035/0046 and http://ehistory.osu.edu/books/official-records/035/0064 (June 16, 2015); and Lowry, Confederate Heroines (Anna Johnson), 98–101, (Jane Ferguson), 147–50.  On networks in refugee camps, see Fellman, Inside War, 71–72.  For the spy claiming Confederate rank, see Lowry, Confederate Heroines, 99–100; for evidence of women spies on Confederate government payrolls, see Edward P. Alexander to Jefferson Davis, September 11, 1861, in The Papers of Jefferson Davis, vol. 7: 1861, eds. Crist, Lynda L. and Dix, Mary S. (Baton Rouge: Louisiana State University Press, 1992), 356Google Scholar; and McCurry, Confederate Reckoning, 105.

56. Whites, “Forty Shirts and a Wagonload of Wheat,” 63. According to the Index Project, nineteen women were subject to military commission trials for harboring guerillas and deserters. Others were tried for encouraging desertion. For a description of the military commission and court martial records, see Lowry, Thomas P., “Research Note: New Access to a Civil War Resource,” Civil War History 49 (2003): 52–63 Google Scholar. The numbers quoted here are based on a summary of the cases of women tried provided by The Index Project. On the torture of Confederate women, see McCurry, Confederate Reckoning, 124–32; Paludan, Phillip Shaw, Victims: A True Story of The Civil War (Knoxville: University of Tennessee Press, 1981)Google Scholar; and Bynum, Victoria E., Unruly Women: The Politics of Social and Sexual Control in the Old South (Chapel Hill: The University of North Carolina Press, 1992)Google Scholar. Lieber was shocked much later to uncover evidence in Confederate archives of violence of Confederate troops toward women in North Carolina. Lieber to Halleck, March 20, 1866, FLP, HL. For Halleck's explanation of the use of “military tribunals” and procedures for military commission trials, see Halleck to Rosecrans, March 20, 1863, O.R., ser. 3, vol. 3, pt. 1, 77–78, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/124/0077 (June 16, 2015).

57. On Smith and Callahan's band, see Streater, “They Have Five Ladies,” 27–29. On Beattie, see Rosecrans to President Abraham Lincoln, November 11, 1864, O.R., ser. 2, vol. 7, 1118–19, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/120/1118 (June 16, 2015); and Lowry, Confederate Heroines, 8–11. On the ambush, see Fellman, Inside War, 201. The examples of women guerillas are constant but scattered throughout the literature. For another example of Nancy Hart, a known “rebel leader” in West Virginia, see Sutherland, A Savage Conflict, 31. For a fictional account, see Jiles, Paulette, Enemy Women: A Novel (New York: William Morrow, 2002)Google Scholar.

58. The total number of military commission trials are provided in Lowry, “Research Note,” 52–63. The number tried specifically for violations of the law of war are derived from summaries of case files from The Index Project. Overall, approximately 200 women were tried by military commissions and 120 were convicted; several were sentenced to death. See Lowry, “Research Note,” 58–59. For Halleck's justification of “military tribunals” by the common usages of the laws of war and explanation of procedures for military commissions tribunals, see Halleck to Rosecrans, March 20, 1863, O.R., ser. 3, vol. 3, 77–78, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/124/0077 (June 16, 2015). Lieber explains the difference between military commission trials and court martials in Article 13 of General Orders No. 100, O.R., ser. 3, vol. 3, 149, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/124/0149 (accessed Jun. 16, 2015).

59. For the numbers in St. Louis, see Streater, “They Have Five Ladies,” 7, fn. 16. On the Provost Marshal system, its many levels, and its disorganized nature, see Blair, With Malice Toward Some, ch. 4.

60. Women's cases represented 3.6% of the military commission trials conducted by the Union army during the war. Numbers calculated based on totals included in Lowry, “Research Note,” 54, 58.

61. Keegan, John, A History of Warfare (New York: Alfred A. Knopf, 1993), 76Google Scholar.

62. Quoted in Streater, “They Have Five Ladies,” 32; Dick to Hoffman, March 5, 1863, O.R., ser. 2, vol. 5, 319–21, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/118/0319 (June 16, 2015); and Kinsella, The Image Before the Weapon, 79–80. According to Lowry, several death sentences were handed down but there is no evidence that any, other than that of Mary Surratt, were executed. See Lowry, Confederate Heroines. On Surratt, see Witt, Lincoln's Code, 289–94. Men find little honor in waging war against women, Kinsella says: The Image Before the Weapon, 79–80. Grotius made the same point. On the reaction of German soldiers to engagement with Soviet women in combat roles, see Hull, Isabel V., Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (Ithaca: Cornell University Press, 2005)Google Scholar.

63. See Major T. Hendrickson to Hoffman (with enclosure), May 15, 1863, O.R., ser. 2, vol. 5, 619–24, eHistory at The Ohio State University, http://ehistory.osu.edu/books/official-records/118/0619 (June 17, 2015); Colonel J. Hildebrand to Hoffman, February 16, 1863, O.R., ser. 2, vol. 5, 277–78, eHistory at The Ohio State University, http://ehistory.osu.edu/books/official-records/118/0277 (June 17, 2015); and Hendrickson to Hoffman, O.R., ser. 2, vol. 6, 149–50 (with indorsements), eHistory at The Ohio State University, http://ehistory.osu.edu/books/official-records/119/0149 (June 17, 2015). I was alerted to the case by Streater, “They Have Five Ladies” The same observation could be made about the secondary literature on the Civil War.

64. Fitch, John, Annals of the Army of the Cumberland (Philadelphia: J.B. Lippincott & Co., 1863), 501–7Google Scholar.

65. Indorsement of Captain and Provost-Marshal-General William M. Wiles (included in military correspondence on the Judd case), January 13, 1863, O.R., ser. 2, vol. 5, 621, eHistory at The Ohio State University, http://ehistory.osu.edu/books/official-records/118/0621 (accessed Jun. 17, 2015); Hildebrand to Hoffman, February 16, 1863, O.R., ser. 2, vol. 5, 277–78, eHistory at The Ohio State University, http://ehistory.osu.edu/books/official-records/118/0277 (accessed Jun. 17, 2015); and Rosecrans (“spy of worst description”) quoted in Streater, “They Have Five Ladies,” 35. Judd was rearrested and confined to a female military prison in Louisville. For the full story, see Streater, “They Have Five Ladies.”

66. Provost-Judge John Fitch to Wiles, January 13, 1863, O.R., ser. 2, vol. 5, 620–21, eHistory at The Ohio State University, http://ehistory.osu.edu/books/official-records/118/0620 (June 17, 2015); and Fitch, Annals of the Army of the Cumberland, 502.

67. Fitch, Annals of the Army of the Cumberland, 501–7.

68. Wiles, January 13, 1863, O.R., ser. 2, vol. 5, 621, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/118/0621 (June 17, 2015); and Hildebrand to Hoffman, February 16, 1863, O.R., ser. 2, vol. 5, 277–78, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/118/0277 (June 17, 2015). For Clara Judd's statement (dated May 11, 1863) see O.R., ser. 2, vol. 5, 621–24, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/118/0621 (June 17, 2015). For the debate about her release, see Major T. Hendrickson to Hoffman, May 15, 1863 (with enclosures from And. Wall to T. Hendrickson, May 12, 1863), O.R., ser. 2, vol. 5, 619–20, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/118/0619 (accessed Jun. 17, 2015); and Hendrickson to Hoffman (with indorsements), July 25, 1863, O.R., ser. 2, vol. 6, 149–50, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/119/0149 (June 17, 2015). See O.R., ser. 2, vol. 6, 150, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/119/0150 (June 17, 2015).

69. Halleck to Rosecrans, March 5, 1863, O.R., ser. 1, vol. 23, pt. 2, 107–9, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/035/0107 (June 17, 2015). The term “military traitor” does not appear in the O.R. before this date, and it appear again later only in reference to Halleck's instructions of March 5, 1863. “War rebel” had been used by Lieber in the guerilla memorandum. See Lieber to Halleck, n.d. (in response to letter of August 6, 1862), O.R., ser. 3, vol. 2, 301–9, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/123/0301 (June 16, 2015). Halleck's letter was reprinted in the New York Times on March 15, 1863. See “The Conduct of the War.; Letter from Gen. Halleck to Gen. Rosecrans on the Treatment of Disloyal Persons Within our Lines. The Case of Gen. Stoughton—Note from…,” New York Times, March 15, 1863 http://www.nytimes.com/1863/03/16/news/conduct-war-letter-gen-halleck-gen-rosecrans-treatment-disloyal-persons-within.html (June 17, 2015).

70. See Kinsella, The Image Before the Weapon, 88–89, and ch. 4.

71. After Halleck's first use on March 5, 1863, the term “military treason” appeared a few times before its adoption in Lieber's Code. See Halleck to Major-General E. V. Sumner, March 17, 1863, O.R., ser. 1, vol. 22, pt. 2, 158–59, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/033/0158 (June 17, 2015); and General Orders No. 30, Department of the Missouri, St. Louis, April 22, 1863, O.R., ser. 1, vol. 22, pt. 2, 237–44, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/033/0237 (June 17, 2015). On March 31, Halleck wrote Major-General Ulysses S. Grant expressing his view that “the character of the war has very much changed within the last year. There is now no hope of reconciliation…We must conquer the rebels or be conquered by them.” He had used almost identical words in a letter to Lieber. He now advocated the turn to hard war, by which he meant a policy of slave emancipation and of bringing war to disloyal civilians. See Halleck to Grant, March 31, 1863, Box 9, FLP, HL.

72. Special Orders No. 399, War Department, Adjutant General's Office, Washington, O.R., ser. 3, vol. 2, 951, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/123/0951 (June 17, 2015). He had previously been informed by telegraph from Halleck. See Lieber to Halleck, December 7, 1862, Box 27, FLP, HL.

73. Article 15, in General Orders No. 100, O.R., ser. 3, vol. 3, 150, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/124/0150 (June 22, 2015); and Article 29, in General Orders No. 100, O.R., ser. 3, vol. 3, 151, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/124/0151 (June 22, 2015). Witt, Lincoln's Code, 234. The text of Article 37 reads as follows: “The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women: and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.” Article 37, in General Orders No. 100, O.R., ser. 3, vol. 3, 152, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/124/0152 (June 22, 2015).

74. Best, Humanity in War, 200; Witt, Lincoln's Code, 233; and Kinsella, The Image Before the Weapon, 88–89.

75. Lieber to Halleck, November 13, 1862, Box 27, FLP, HL; and Halleck to Lieber, November 15, 1862, Box 9, FLP, HL. Trial by military commissions had been authorized since the beginning of the war, most surprisingly in the case of the Dakota War of 1862. These trials became more common after the adoption of General Orders No. 100. On the case of the Dakota trials, see Herbert, Maeve, “Explaining the Sioux Military Commission of 1862,” Columbia Human Rights Law Review 40 (2009): 743–98Google Scholar; Chomsky, Carol, “The United States–Dakota War Trials: A Study in Military Injustice,” Stanford Law Review 43 (1990): 13–98 Google Scholar.

76. Lieber to Halleck, June 21, 1863, Box 27, FLP, HL; Lieber to Halleck, October 3, 1863, Box 28, FLP, HL; and Lieber to Halleck, February 20, 1863, Box 27, FLP, HL.

77. Lieber to Halleck November 25, 1862, Box 27, FLP, HL; Lieber to Judge Amos M. Thayer, February 3, 1864, in Life and Letters of Francis Lieber, 339–41, quote at 341. To Lieber, the American Civil War was a war of national unification like that of Italy or, later, Germany; he talked of “the national side” and the “southern side” in the American Civil War. Lieber to Senator Charles Sumner, June 16, 1864 and Lieber to Dr. S. Tyler, January 14, 1867, in Life and Letters of Francis Lieber, 348, 367. Lieber's views of national sovereignty and state unity were of transnational interest. See his communications with Johann Kaspar Blunctshli and Édouard Laboulaye in the Huntington Library correspondence; and Sawyer, Stephen W. and Novak, William J., “Emancipation and the Creation of Modern Liberal States in America and France,” Journal of the Civil War Era 3 (2013): 466–500 Google Scholar.

78. Lieber insisted that slavery had legal standing only as a municipal institution; that the institution had no standing in international law. General Orders No. 100, Art. 42. On that, see also the recent argument of Oakes, James, The Scorpion's Sting: Antislavery and the Coming of the Civil War (New York: W. W. Norton and Co., 2014), 158–59Google Scholar.

79. Lieber to Halleck, February 20, 1863, Box 27, FLP, HL.

80. LI 182B (photostat of Halleck copy), FLP, HL; Draft article 19 stated “The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; unmixed private property…the persons of the inhabitants, especially those of women; and the sacredness of domestic relations.” The edited draft was sent near March 13, 1863. See Halleck to Lieber, March 13, 1863, Box 9, FLP, HL; and Witt, Lincoln's Code, 231. Halleck's invitation to Lieber at 229. Witt says “age of democratic nations and mass armies.”

81. Lieber to Halleck, March 4, 1863, March 17, 1863, March 23, 1863 [n.d. on letter], Box 27, FLP, HL; and Halleck to Lieber, April 8, 1863, Box 9, FLP, HL. The long version referenced here is LI 182A, FLP, HL.

82. Articles 90, 91, 92, 155, 156, and 157, in General Orders No. 100, O.R., ser. 3, vol. 3, 158, 163, 164, eHistory at The Ohio State University http://ehistory.osu.edu/books/official-records/124/01508 (June 22, 2015).

83. It seems too obvious a point to require documentation, but on the Peninsular war in which women's role became part of national mythology, see Fraser, Napoleon's Cursed War; on the Italian wars of unification, see the example of the “Garibaldiennes” (noted but treated as an absurdity) in Best, Humanity in Warfare, 197–98; on the Spanish Civil War, see Paul Preston, The Spanish Holocaust: Inquisition and Extermination in Twentieth-Century Spain (London: Harper Press, 2012), and Paul Preston, The Spanish Civil War: Reaction, Revolution, and Revenge (New York: W. W. Norton & Co., 2007); and on Algeria, where women's role was prominently featured in Gillo Pontecorvo's famous 1966 film The Battle of Algiers, see Horne, A Savage War of Peace. It would require a collective effort to assemble the master list.

84. For the quote and an excellent statement of the state of the field from a historical perspective, see Elizabeth D. Heineman, ed. Sexual Violence in Conflict Zones: from the Ancient World to the Era of Human Rights (Philadelphia: University of Pennsylvania Press, 2011), 18. For a more contemporary perspective emphasizing the need to move beyond simplistic dualities (men as perpetrators and women as victims) including in scholarship and development policies, see Caroline O. N. Moser and Fiona C. Clark, Victims, Perpetrators or Actors: Gender, Armed Conflict and Political Violence (London: Zed Books, 2001); and Kathleen Kuehnast, Chantal de Jonge Oudraat, and Helga Hernes, eds. Women and War: Power and Protection in the 21st Century (Washington, DC: United States Institute of Peace Press, 2011), 1–18. For one fascinating early grappling with the issue focusing on women terrorists, see Kristeva, Julia (trans. Jardine, Alice and Blake, Harry), “Women's Time,” Signs 7 (1981): 13–35 Google Scholar, esp. 28.

85. On the Philippines, see Witt, Lincoln's code, 353–65; and Kramer, Paul, The Blood of Government: Race, Empire, the United States, and the Philippines (Chapel Hill: The University of North Carolina Press, 2006)Google Scholar. Kramer seems unaware of the earlier history of guerilla war that shaped the powers accorded the United States Army in wars of occupation by General Orders No. 100.

86. Frank Freidel, Lieber's biographer, says that Bluntschli's 1866 treatise was “little more than a translation.” See Friedel, Francis Lieber, 340, 402–3. On the “Hague track” and the overlooked nineteenth century German and Russian lineage of the law of war and international humanitarian law, see Peter Holquist, “‘Crimes Against Humanity’: Genealogy of a Concept (1815–1945),” unpublished paper in the author's possession. Since delivered as a lecture: Peter Holquist, “‘Crimes Against Humanity’: Genealogy of a Concept (1815–1945),” (presented at the Russian, East European, and Eurasian Center [REEEC], University of Illinois, Champaign, IL, February 5, 2015). Lieber's correspondence with Bluntschli, Édouard Laboulaye (who translated the code into French) and the Belgian scholar and jurist Gustave Rolin-Jaequemyns is in his papers at the Huntington Library. In April 1872, he was officially consulted by the International Committee of Geneva. See Life and Letters of Francis Lieber, 422. Lieber died in 1873 just before the first Brussels meeting, but nonetheless, Martti Koskenniemi counts him as one of founders of the field of international law. See Kosenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (New York: Cambridge University Press, 2002), 92Google Scholar.

87. Quoted in Sawyer and Novak, “Emancipation and the Creation of Modern Liberal States in America and France,” 492; Édouard Laboulaye to Francis Lieber, July 31, 1863, Box 16, FLP, HL, (term is “nouveaux liberaux”). Laboulaye wrote articles on the Civil War for the French press including one on the election of 1864 emphasizing its significance not just to the United States, but also to France and Europe. He continued to follow Lieber's work on Reconstruction and on black suffrage as being meaningful for French efforts in democracy and self-government. Laboulaye to Lieber, October 4, 1864, September 28, 1865, Box 16, FLP, HL.

88. John Witt says the American code “had made the laws of war safe for the powerful states of late nineteenth century Europe, just as it had for the Indian wars in the American west,” but that argument follows far more directly from Section X of the code than the emancipation articles on which his thesis turns. Witt, Lincoln's Code, 345–46.

89. For the Confederate response, see, particularly, the comments of the Secretary of War, James A. Seddon in Seddon to Colonel Robert Ould, June 24, 1863, O.R., ser. 2, vol. 6, 41–47, ehistory at the Ohio State University http://ehistory.osu.edu/books/official records/119/0041 (June 17, 2015). Seddon focused particularly on the way that the code authorized acts of violence “against non-combatants, and especially the women and children.” He also denounced Lieber's concept of war treason: “The words war-traitor, war rebel are not words of an American vocabulary” but could be embraced only by one “alien by nativity to the Constitution, laws and institutions of the United States” like the “German Professor” who was, he said, more familiar with the ways of “imperial or military despots on the continent of Europe.” On Sherman's actions in Atlanta, see the remarkable real time exchange across the lines between General Sherman and General John Bell Hood, C.S.A. Hood said that Sherman would answer to the civilized world for his abuse of the common laws of war and abandonment of his obligation to protect innocent women and children. General John Bell Hood to Sherman (enclosure), September 9, 1864, O.R., ser. 1, vol. 39, pt. 2, 415, ehistory at The Ohio State University http://ehistory.osu.edu/books/official-records/078/0415 (June 17, 2015).

90. An argument made by Kinsella, The Image Before the Weapon.

91. Lieber, “Reflections on the Changes Which May Seem Necessary,” 181–219, quotations at 207, 209. For more on Lieber's views on women's nature and his opposition to suffrage, see the draft fragments and notes in his papers at the Huntington Library: Lecture on Woman Suffrage, and folder of clippings (which includes the text of a brilliant response by a woman published in The Nation) L1 114, FLP, HL.

92. The literature on these subjects is now significant, but for an introduction see the following: On the dangers of the Thirteenth Amendment for the rights of husbands, see Cott, Public Vows, ch. 4, quotation 80; and Stanley, Amy Dru, “Instead of Waiting for the Thirteenth Amendment: The War Power, Slave Marriage, and Inviolate Human Rights,” American Historical Review 115 (2010): 732–65Google Scholar. On the long proslavery usage of marriage to legitimize slavery, see McCurry, Stephanie, Masters of Small Worlds: Yeoman Households, Gender Relations and the Political Culture of the South Carolina Low Country (New York: Oxford University Press, 1997)Google Scholar.

93. As late as March 1865, Congress passed legislation extending freedom to enslaved women in Kentucky (a Union slave state) as the wives of Union soldiers. See Stanley, “Instead of Waiting for the Thirteenth Amendment,” 732–65. The idea that all slave women were wives was of course a fiction (especially given the illegality of marriage for slaves in the United States), but it was an important one in policy terms. On marriage and emancipation, see McCurry, Stephanie, “War, Gender and Emancipation in the Civil War South,” in Lincoln's Proclamation: Emancipation Reconsidered, ed. Blair, William and Younger, Karen (Chapel Hill: University of North Carolina Press, 2009), 120–50Google Scholar; and the recent book by Franke, Katherine, Wedlocked: The Perils of Marriage Equality (New York: New York University Press, 2015)Google Scholar. On the meaning for women's suffrage, see Stansell, Feminist Promise, ch. 4; and DuBois, Ellen Carol, Feminism and Suffrage: The Emergence of An Independent Women's Movement in America, 1838–1869 (Ithaca: Cornell University Press, 1978)Google Scholar.