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>> 49 2 “It cant be cald stealin’” Customary Law among Civil War Soldiers Thomas C. Mackey Customary Law Among Civil War Soldiers Introduction and Problems Scholars of the history of the law in the nineteenth-century United States have argued that a “legal culture,” a remembered and applied customary law, exists embedded in the general culture and society.1 To unearth and recover this customary law, legal scholars must immerse themselves in the rich archival resources. In his own work and by example through his teaching and mentoring of students and scholars, especially as founder of the New York University Law School’s Legal History Colloquium, William E. Nelson has issued a fundamental injunction to “go to the sources, go to the sources, go to the sources” that resonates throughout the contemporary scholarship in United States legal history.2 To plumb this idea of a customary law existing among average nineteenth -century people, legal historians analyzed the role of custom in Anglo-American history in many different times and places. From large overviews of custom to more specialized studies of popular politics and criminal law in the Revolutionary era, to examining how popularly held understandings of customary rights explain the bargaining and conflict between perceived social norms regarding pig keeping in antebellum New York City, these scholars have shown that custom and customary law constitute key aspects of United States legal history that most scholars have neglected in favor of studying forms of law and lawmaking .3 Understandably, law-on-the-books constitutes the major focus of scholarly work in the field; however, law-in-action (or law-as-applied) 50 > 51 were legal and perhaps even necessary, or even mandated by orders from higher military authority. One possible answer is that a customary law emerged among the soldiers that both guided and explained their behaviors. Soldiers adopted and adapted custom and necessity to their new strange environments; in turn, custom and necessity helped to explain and justify their behaviors within the military and wartime contexts . In this manner, the evidence explored in this essay suggests that more was at work with the men, their actions, and their explanations of their actions than mere self-preservation. No doubt at times men on both sides in extreme situations acted from a sense of self-preservation, but those times were few and far between: The more common actions they described in their letters find justification on other grounds. Civil War officers on both sides fretted that their men possessed little respect for military law. Civil War soldiers created new communities, new rules, new customs, and new traditions within their units during their service in uniform. Within this context of military experiences, the men developed their own subculture of legal values that existed parallel to military law and that, at least at times, operated outside of the control of military law and their officers. Soldiers explained their social behaviors in legalist terms and then used those explanations to craft a self-justifying “rule of law,” a common law of soldiers that, they insisted, did not violate military law-on-the-books. Identifying the presence of and analyzing the significance of this informal, in-dwelling, customary law is the focus of this study.6 Sources and Approach Considering the available sources reveals problems for the researcher. Examining the evidence, it becomes clear that the social behaviors being analyzed are “extralegal.” The working hypothesis is that customary law existed alongside formal military law and outside the normal civil and criminal law. Men in the ranks of all the armies had to recreate communities and explain their behavior within their companies and regiments based on civilian life experiences and in reaction to wartime contexts. Men in the ranks had to make sense both of the destruction of property in war and of their own behaviors, which drove them to act in manners that in their civilian lives would have been at least 52 > 53 frankly overwhelming. Every library and archive has its own treasuretrove of Civil War letters and diaries—from the Library of Congress and the National Archives; to online databanks; to state libraries and archives; to the U.S. Army’s archive at Carlisle Barracks in Carlisle, Pennsylvania; to the most humble local or county archive (which is open to researchers when the local librarian or archivist damn well feels like it); to letters and diaries still in private hands. When this vast array of unpublished documents is added to the mountain of published...

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