Lincoln on Trial: Southern Civilians and the Law of War
By Burrus M. Carnahan
(August 2010 Civil War News)
Endnotes, index, 169 pp., 2010, University Press of Kentucky, www.kentuckypress.com, $30.
Was Abraham Lincoln a war criminal? As it concerns the Union armies’ treatment of Southern civilians, this provocative question seems to invite responses from non-historians grinding political axes.
Fortunately, Burrus M. Carnahan, a former member of the Air Force’s Judge Advocate General’s Office, has taken on the issue from a factual and historical perspective.
Carnahan’s succinct new book contains five substantive chapters devoted to applying international law in a civil war, treatment of property, retaliation for guerrilla activity, command responsibility for regional devastation, and personal injury to civilians. Delivered in a highly readable style, each could stand alone as a separate essay.
Using a combination of primary and secondary sources, Carnahan evaluates Lincoln’s actions in the context of the laws of war extant in 1861 rather than through a modern lens.
Throughout, he shows a president walking a tightrope between employing legal principles to mitigate the impact of warfare on civilians and simultaneously avoiding concessions that would give the Confederacy “belligerent” or sovereign nation status.
Carnahan concludes that Lincoln’s actions generally fell within the boundaries of what was considered at the time lawful conduct measured by the somewhat malleable standard of “military necessity.”
A central element that weaves in and out of Carnahan’s analysis is the Lieber Code, which was approved by Lincoln and promulgated by the War Department as General Orders No. 100 in April 1863.
Drafted primarily by the Prussian emigre and scholar Francis Lieber, this was the first attempt anywhere to create a compendium of the laws of war.
Carnahan demonstrates that Lincoln frequently intervened and applied these principles when individual cases came to his attention; he acted on some occasions by issuing a directive and on others by persuasion.
Many of these instances involved forced removals of residents or other retaliation for local guerrilla acts. Carnahan fails, however, to convincingly explain why Lincoln acted more like a field officer addressing these problems on an ad hoc basis than as commander-in-chief establishing a policy of general compliance.
A detailed treatment of the Lieber Code is still needed. While Carnahan and others have touched on aspects of the Code in previous work, no one has thoroughly explored its genesis and purpose, the drafting process, its promulgation, the sources for several of its provisions, or efforts to require adherence in the field.
For example, articles 42, 43 and 57 incorporated the substance of the Emancipation Proclamation for captured or fugitive slaves and barred racial discrimination in the conduct of warfare.
They appear to have done so, however, as matters of fundamental law rather than as a product of the more amorphous, fact-specific “military necessity” that Lincoln had used as grounds for his proclamation.
There seems little doubt that at least this part of the Code could not have been issued one year earlier, when for political reasons Lincoln was still countermanding military orders that declared freedom for slaves based on “necessity” (such as Maj. Gen. David Hunter’s May 1862 order governing his Department of the South).
Article 153 presents another area for inquiry. That section codified an answer to Lincoln’s conundrum because it stated that the application of legal principles in a rebellion was not an acknowledgment of “belligerent” or national status. This proposition indicates a political purpose for portions of the Code.
Carnahan’s book is too compact to probe these subjects meaningfully. Nonetheless, it provides a solid overview that raises salient questions, addresses important areas of interest and provides plausible, if not definitive, analysis. It is recommended.
Reviewer: John Foskett
John Foskett is a practicing attorney in Boston, Mass., and has a life-long interest in the Civil War.