War Crimes Committed by Federal Forces During the Civil War

We have all come been taught that Abraham Lincoln was a gentle man, “Honest Abe,” a man who advocated “malice toward none and charity for all.”  We have been taught that Lincoln would have opposed the policy pursued by Radical Republicans like Thaddeus Stevens, which pushed for vengeful, retributive policies against the South.  We have been taught in books, movies and documentaries that Lincoln instead preferred a policy of healing that neither punished the defeated Confederate government and Army nor average Southern civilians.

Since Lincoln was assassinated before the Reconstruction policies were put into effect, we can never know for sure if he was sincere or not.

However, we can make an informed judgment regarding his true motivations if we examine how he militarily conducted the Civil War as Commander in Chief of the Federal forces and which military policies he preferred his generals take in prosecuting the war.

Unfortunately, the sad truth is that by almost any standard – those that existed prior to the War, those that existed after the War or even by the very standards Lincoln proclaimed to be operating under DURING the war, the prosecution of it… against civilians, against POWs, against property, against slaves, against women and children, against public works used for civilian purposes… was clearly criminal.

There is even evidence indicating that, ironically given his own fate, high ranking members of the Lincoln Administration may have approved an assassination plot against Confederate President Jefferson Davis during the War.

One may be tempted to seek to give Lincoln a pass by indicating that during a conflict as vast and violent as the Civil War (a term I will use here as it is the most common name applied to the conflict, despite the fact it is a gross misnomer) he could not have been aware of every illegal act or war crime his generals or officer corps may have committed and that there is little evidence he directly ordered that war crimes be carried out.

The evidence, however, is quite stark that Lincoln often acted much as did Henry II of England who, seeking to indicate to his knights that he would prefer they “get rid of” his politically disloyal Archbishop of Canterbury Tomas a Becket by beseeching them:

“Will no one rid me of this turbulent priest?”

Henry did not have to issue a clear direct order to make his point to his knights regarding Becket; Lincoln was in a similar position with his generals regarding the military policy he preferred regarding the South.

If we consider Lincoln and his generals in this fashion, we can get a better picture of his culpability in the perpetration of Federal War Crimes against the Confederacy as a matter of implementing the Federal military doctrine of “strategic military necessity.”

This concept, as we will see, allowed the Federal Armies to elude their own rules of war as laid out in their own “Lieber Code” – a code they formed to supersede the previous, far more civilian friendly code that existed prior to the War.

Of course, there is no doubt that Confederate soldiers committed individual crimes against civilians, property, POWs, women, children, slaves and Public Works during the War.

However, these were individual crimes that were not only unsanctioned by the Confederate Government and Military Command, but were expressly forbidden and usually severely punished when they were known to have occurred.

I have organized this presentation into several parts:

Definition of Military Conduct as Understood Prior and During the Civil War / the Concept of Total War / the Lieber Code

Federal War Crimes Against Civilians

Federal War Crimes Against Public Works Used For Civilian Purposes

Federal War Crimes Against Private Property

Federal War Crimes Against Prisoners of War

Federal War Crimes Against Women, Children and Slaves

Federal Plans to Assassinate Confederate Leaders

All references to “Official Records” are to Us War Department, “the War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, set 3, Vo. 1 – Washington DC Government Printing Office, 1880 – 1901, hereafter cited as “Official Records.”

DEFINITION OF MILITARY CONDUCT as UNDERSTOOD PRIOR and DURING the CIVIL WAR / the CONCEPT OF TOTAL WAR / the LIEBER CODE.

The Civil War is often thought of as the first conflict to be fought as a modern Total War; that is, a war that knew no boundaries, no rules, no exceptions and no mercy; a war where all atrocities and all criminality was covered over by the concept of “military necessity” in pursuit of the over-riding objective: achieving a complete and total victory over the enemy defined as the annihilation of the enemy.

Brutality – towards civilians, prisoners, slaves and hostages in war is as old as Mankind.  Ancient warfare is filled with examples where civilians were routinely mass murdered and History is replete with atrocities committed by those like Attila the Hun, Genghis Kahn and Timur, who burned cities and left mountains of civilian skulls in their wake.

The Crusades were infamous for the large scale killing of civilians on both sides.

Warfare in Europe was not much better; the 30 Years War of the 1600s was filled with atrocities against civilians and massive destruction of property.

However, by the time of the Enlightenment through the 18th and early 19th Century, Western warfare, especially in Anglo-American culture, attempted to reign in some of the more egregious aspects of war as it pertained to civilians and civilian property.

As Lance Janda writes in his article “Shutting the Gates of Mercy: The American Origins of Total War, 1860 – 1880” the Journal of Military History #59, no. 1 (January 1995) the attempt to provide some protections to civilians stemmed from the Enlightenment desire “which stressed that violence against non-combatants was barbaric and unworthy of modern military forces.”

Of course, despite such progressive ideas, individual commanders in the field still issued orders and soldiers often engaged in brutal conduct against civilians in Anglo-American warfare.

We saw this in our own country during the American Revolutionary War, when the British Legion under Col. Banastre Tarleton whose troops killed over a hundred prisoners during the so-called Buford Massacre in Virginia as well as numerous other acts of cruelty toward the civilian population.

Further, American treatment of Native American tribes, such as Andrew Jackson’s treatment of the Creeks and Seminoles, were hardly known for their gentle treatment of non-combatants.

However, what we find during the Civil War is a departure from the growing concept that such predations were to be curbed and discouraged.

Instead, we find that official policy, fully sanctioned by the highest levels of the military command of the Federal forces commanded by President Lincoln and in concurrence with the policy set by the highest echelons of the civilian leadership enthusiastically engaged in the type of war crimes that are implicit in the conduct of a “Total War.”

We must ask ourselves how this concept of Total War was seen by both sides during the Civil War and understand how this concept differed from previous conceptions of what was considered proper warfare.

“Total War” was NOT a concept taught at West Point prior to the Civil War, where war on civilians was considered anathema to “civilized warfare.” It was certainly NOT taught to cadets such as Grant, Sherman, Halleck and Sheridan when they attended the Academy.

The code of military conduct at the time was set by the Articles of War of 1806, which was in force until it was replaced in 1863 by the “Lieber Code” (also known as “General Order 100.)

 

The 1806 Code stated:

“Any officer or soldier who shall quit his post or colors to plunder and pillage shall suffer death or other such punishment as shall be ordered by a sentence of a general court martial.”

However, this view ran contrary to the political desire to annihilate the enemy “root and branch”, which gripped the military and political elites in the North.  This was because it was not simply State Governments that were “in rebellion” against the Federal Government; it was the entire free population that was rejecting the domination of the Federal Government, which they felt had betrayed the compact they signed onto when they ratified the Constitution of 1789 by expanding Federal power over the states beyond the enumerated Constitutional limitations.  Having left British rule because they felt the British ruled WITHOUT the consent of the governed, the South came to the conclusion, after a long series of political crises, that the Federal Government of 1861 was now in the same position as the government of King George III.

They were determined to exercise their right to remove themselves from the control of the Federal Government in the same manner in which they removed themselves from the control of the British government.

To prevent the South from exercising this right, the Federal Government needed to defeat and subjugate the Confederacy and to establish a new constitutional order in its place… a constitutional order where the Federal Government moved from a position where it was limited to enumerated Constitutional powers regarding the individual states to one where it was perpetual, indivisible, dominant and exalted as “sacred.”

The war aim of the Federal Government in Washington was to break the “chains” of the Constitution which placed much governing power in the hands of the States and instead create a supreme National Government with the potential to exert almost unlimited authority.  Such authority would allow the backers of the Republican Party, those of the rising Northeastern Industrial and Railroad interests, to use the coercive power of the Federal Government to their own purposes over and against the power of the States to interfere.

To succeed in such a massive re-structuring of the Government meant that the South could not just be militarily defeated on the battlefield… it has to be annihilated, its culture demonized and eradicated, its economy desolated and its political will broken so thoroughly that there would never again remain any question regarding Federal dominance over the States.

As Adam Badeau , who was on General Grant’s staff and was present at Appomattox notes:

“It was not victory that either side was playing for, but for existence.  If the rebels won, they destroyed a nation; if the government succeeded, it annihilated a rebellion.”

Of course, the Confederacy in no way wanted to “destroy” the United States, which would have continued, albeit in attenuated form as a Nation, after the South left.

For the South, however, the statement is entirely true: for the Federal Government to succeed in overturning the Constitution of 1879 and, in effect, create a “Second Republic” based on immensely increased Federal power, the Confederacy had to not just be defeated, BUT ANNIHILATED.

But if the earlier concepts of proper standards of war conflicted with those adopted by the Federal Government during the Civil War, what ARE “proper standards of war?”

Further, did the Federal Government, in adopting NEW standards of warfare, violate the very standards they adopted?

There were several standards of war that were in effect in the Western world during the time the Civil War took place:

1) “Customary use of long standing”

Customary Usage are practices that go back hundred and thousands of years not based on written treaties of conventions.  To meet the criteria of “Customary Usage” it must be a custom practiced by Nations; that is, there is an unwritten agreement among nations that such practice is mandated by custom.  For example, a white flag is a considered to be indicating a truce by longstanding custom.

2) The Geneva Convention of 1862 which narrowly focused on “The Amelioration of the condition of the wounded in armies in the field.”

This convention grew out of the Crimean War and was signed by 10 European States excluding Great Britain.  The United States also did not sign and therefore was not bound by its articles.

3) Emmerich de Vattel (1714-67)  “The Law of Nations”

Historically, the government of the United States had adhered to the international law code of the Swiss jurist, Emmerich de Vattel (1714-67), author of The Law of Nations, on the proper conduct of war. As late as 1862, the U.S. Supreme Court in rendering its opinion in the “Prize Cases” cited Vattel. Because of the emphasis it placed on the protection of non-combatants, the Vattel code was repudiated by Lincoln who issued a new law governing warfare that lacked international standing – GENERAL ORDERS No. 100, known as the “Lieber Code” of 1863.

Joesph Fallon, E-book “Lincoln Uncensored” endnote  21 (LINK AVAILABLE?)

4) The Lieber Code

Francis Lieber was a German-American legal scholar, jurist and political philosopher; the code that bears his name (AKA General Order 100) was a series of 156 articles published in 1863.  Lincoln signed it as part of his Constitutional duty under Article II, which states that the President must supply the rules and regulations for the governance of the military.

It read: “The following ‘Instructions for the Government of Armies of the United States in the Field,’ prepared by Francis Lieber, LL.D., and revised by a board of officers, of which Maj. Gen. E. A. Hitchcock is president, having been approved by the President of the United States, he commands that they be published for the information of all concerned. By order of the Secretary of War: E. D. TOWNSEND, Assistant Adjutant-General, Washington, April 24, 1863.” The War of the Rebellion: a Compilation of the Official Records of the Union and Confederate Armies, also known as Official records of the Union and Confederate armies or OR, Series III, Volume III, p. 148.

From the outbreak of the Civil War, Lincoln’s strategy was to defeat the Confederacy by targeting Southern civilians. One of his first acts was to order a blockade of Southern ports on April 19, 1861 to deny food and medicine, among other items, to civilians. Because such acts violated traditional U.S. military rules of conduct, Lincoln needed a new code to “legalize” his actions.

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