Act of Justice: Lincoln's Emancipation Proclamation and the Law of War

5. The Law as a Weapon

71 5 The Law as a Weapon During the fall and winter of 1861–1862, while the U.S. government slowly conceded to Confederate forces the rights of international belligerents , U.S. military commanders in the field started to use the law of war as a sword against the rebels. The president had begun this process himself in April when he claimed the right to prohibit neutral trade with Southern seaports by placing them under a blockade. In the fall, Federal authorities increasingly claimed the right to punish, as unlawful combatants, guerrillas and bushwhackers who attacked Union forces and military assets behind U.S. military lines without being enrolled in any unit recognized by the Confederate military or while wearing civilian clothing rather than Confederate uniforms. General John C. Frémont, commanding Federal forces west of the Mississippi from his headquarters in St. Louis, was first to threaten Confederate guerrillas with punishment under the laws of war. During the Mexican War, Frémont, then a major in the Army Topographical Engineers, had participated in the American conquest of California, and he had lived there for a time after leaving the army. He therefore had some familiarity with the practice of using military courts to govern occupied territory and suppress attacks from unlawful combatants. In Missouri, Frémont believed he faced problems similar to those the U.S. Army had encountered in territories conquered from Mexico. In 1861, the population of Missouri was divided in its loyalties. Pro-Union Missouri volunteers were raised by Nathaniel Lyon, a U.S. Army officer, while pro-Confederate officials organized the Missouri State Guards under the command of Sterling Price. In the middle of June, Federal forces advanced from St. Louis to the state capital at Jefferson City, forcing General Price’s army to retreat to the southwestern part of the state. Some members of the State Guard remained behind and, with Price’s encouragement, began to burn railroad bridges, de- 72 Act of Justice stroy telegraph lines, and engage in other acts of guerrilla war against the Federal forces. After General Frémont took command of the Department of the West on July 25, he realized that much of Missouri was in effect occupied hostile territory, just as California had been in 1846, and that the laws of war could be applied to the local population to discourage guerrilla activities. Frémont may have gotten this idea from one of his subordinates, General John Pope. In response to sniper attacks on Union troop trains near Palmyra, Missouri, Pope had ordered one of his subordinates to “have the men who did the firing . . . tried by a military commission which you will order and at once execute the sentence of the commission upon them.”1 Unfortunately, General Pope was not a legal expert, and the officer to whom this order was directed did not have the authority to convene military commissions. Any trials he ordered would be illegal. On August 30, General Frémont issued a public proclamation announcing his intention to adopt Pope’s policies in dealing with guerrillas . The lines of the army occupation in this State are for the present declared to extend from Leavenworth by way of posts of Jefferson City, Rolla and Ironton to Cape Girardeau on the Mississippi River. All persons who shall be taken with arms in their hands within these lines shall be tried by court-martial and if found guilty will be shot. Real and personal property of those who shall take up arms against the United States or who shall be directly proven to have taken an active part with their enemies in the field is declared confiscated to public use and their slaves if any they have are hereby declared free men.2 According to a biographer sympathetic to Frémont, the proclamation was drafted quickly, with his “accustomed impetuosity,”3 and much of its language was overbroad or inappropriate. The wording of the proclamation was so imprecise that it appeared to apply to regular Confederate soldiers captured in uniform and in open battle. One of General Frémont’s subordinates even asked whether the proclamation required him to shoot enemy wounded captured on a field of battle, leaving a horrified Frémont to reply that he wanted it “clearly understood that the proclamation is intended distinctly to recognize all the usual rights The Law as a Weapon 73 of an open enemy...