The Lieber Code

Following the French Revolution, as the Army of the North began moving slowly across Europe, even before Napoleon came to power, the French government sent special agents to follow the army and search out artistic treasure to loot and send back to Paris.  While the Louvre had opened its doors in the 1750’s, the collection was small and the doors were open to the public only two days a week.  It was conquest and theft that made the Louvre great.

There was no existing legal pretense for this except for the sad custom of “To the victor go the spoils”.  The growth of national identity that started in the 17th century—and continues to this day—meant that, increasingly, people in a region believed that cultural artifacts like artwork were part of their identity and they resisted the removal of their treasures.

Accordingly, as Napoleon moved his army across Italy, conquering individual states, he began writing clauses into his peace treaties that allowed France to seize a specified number of paintings, sculptures, and precious manuscripts.  There is, of course, a special place in hell for people who steal books.  In Napoleon's case, it was St. Helena.

In 1797, Napoleon marched towards Venice after having successfully conquered Northern Italy.  Accepting the inevitable, the Venetian Doges and Grand Council surrendered without a fight, allowing the French army to enter the city unopposed.  This surrender effectively ended the 1100-year-old Republic of Venice, becoming official with the Treaty of Campo Formio in May, 1797.

Though the treaty gave Venice to the Austrian Empire, it specifically allowed France to take 20 paintings and 500 books and manuscripts back to France.  Since Napoleon was deliberately slow in actually turning over the city to the Austrians, the number of paintings seized and looted was in excess of this number.  In addition, paintings and sculptures that glorified the rule of the doges were deliberately destroyed. 

Napoleon ordered removal of the Horses of San Marco, that had spent more than five centuries atop Saint Mark’s Basilica after they had been looted by Venetian soldiers of the 4th Crusade during the sack of Constantinople in 1204.  These were sent back to Paris in a convoy that included the looted works of Rome.

When the convoy arrived in Paris in the summer of 1798, the wagons of untold wealth became a victorious parade, with garlands decorating the wagons, public officials walking beside each wagon, and bands playing festive music.  The San Marco horses—the only objects unpacked for the crowd to admire—were not taken as part of any treaty, but had simply been looted and were intended to adorn the top of the Arc de Triomphe du Carrousel, still under construction.

Using the pretense of peace treaties to seize the great works of art, Napoleon looted the great art museum of Europe, stole every ancient manuscript in the Vatican, and even emptied the zoos of the provinces he conquered.   The Louvre, renamed the Museum Napoleon, became the greatest concentration of art in the world.  

After the Battle of Waterloo, the coalition nations sought to repatriate much of the stolen artwork, and repatriation clauses were integral to the multiple treaties between European countries and France.  In some cases, military forces simply seized their stolen art and took it home.  The Horses of San Marco were returned to Venice in that way. 

King Louis, grateful to the be back on the throne in Paris, promised the allies he’d return all of the stolen art, but he simultaneously promised the people of Paris that the artworks would remain in the renamed Louvre.  To the people of Paris, the artworks had been given to France legally by treaty, while their removal from Paris by the coalition forces was simple theft.  Accordingly, King Louis did assist in the repatriation of some artworks, but in many cases he moved as slowly as possible (or simply ignored certain requests).

An example of this stalling process would be the “return” of the famous Veronese painting, The Wedding at Cana.  Though it was scheduled to be returned to Venice, director of the Louvre refused to send the painting back, claiming it was too delicate to survive the trip.  Interestingly, the painting had been sturdy enough to be moved to the site of Napoleon’s wedding, and had survived  being rolled up and hidden twice during subsequent wars (the Franco-Prussian War and World War II).  Despite Venice still demanding the return of its painting, the artwork remains in the Louvre matter now settled.  The original painting has suffered minor damage twice while at the Louvre, through carelessness of the museum staff.  In 2007, the painting, not the original but a high resolution full-size digital reproduction, was finally returned to Italy and France said the matter was settled.  (Evidently, if you steal something in France, you can settle the matter by giving the owners a photograph of what you stole.)

And since there was no existing international law governing the military theft of art, there was little that could be done about it, but this changed because of one veteran of the Battle of Waterloo.

Franz Lieber was a German-American jurist, political philosopher, and scholar, born on March 18, 1800, in Berlin, Germany, who fought for over two years in the Prussian Army during the Napoleonic Wars and was wounded at the Battle of Waterloo.  After studying law and philosophy at the University of Jena in Germany, Lieber participated in the attempted revolution of 1848, that sought to bring democratic reforms to Germany.  After the revolution was crushed, Lieber made his way to the United States to avoid being tried for treason in Germany.  

When the Civil War started, Lieber was a professor of history at Columbia University, (all the really good men have taught history) where he spoke publicly  about "Laws and Usages of War" proposing that the laws of war correspond to a legitimate purpose for the war.   At the request of the Commanding General of the Union Army, Henry Halleck, Lieber authored General Orders 100 (1863), commonly referred to as the Lieber Code, that established the legal conduct for the military during warfare.  Among the provisions is the following:

"All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force….”

I wish I could tell you that that Lieber's Code made a profound difference in how the Civil War was fought.  It didn't, as even a passing knowledge of Sherman's march to the sea will prove.

This was the first recognition of cultural property by any nation in war.  The Lieber Code led to several international treaties and served as the basis for the Hague Agreements of 1899 and 1907.  The Lieber Code is still referenced by name in the United States Department of Defense Law of War Manual of 2023.