Lincoln on Trial: Southern Civilians and the Law of War (review)

For years, neo-Confederates accused the Lincoln administration of committing war crimes. They claimed that Union soldiers indiscriminately burned houses, robbed civilians, and stole property, particularly on Sherman's March to the Sea. Burrus Carnahan's tightly focused yet effective Lincoln on Trial disagrees. The author, a former military lawyer and current law professor, argues that Lincoln conscientiously employed reason in following military law as it was understood in the 1860s. Carnahan views the conflict from the president's perspective, covering his approach to southern civilians. In 1861, confusion reigned as Lincoln applied federal law on land by calling for militia, while employing international law at sea by declaring a blockade. Enemy soldiers became prisoners of war, while sailors faced piracy charges. The issue of military necessity resolved this dispute. Equipped with German American scholar Francis Lieber's law code of 1863, Lincoln gave his commanders the authority to win the war, including powers to seize property, forage for supplies, and levy fines on civilians for supporting guerillas. He intervened only in specific cases, mainly to avoid malicious behavior amongst his forces.

After establishing the legal basis for Lincoln's policies, Carnahan cites numerous examples of his use of reason to guide the Union war effort. He forbade his commanders from interfering with southern churches, lifted General Grant's unusual ban on Jews from his army camps, and prevented the burning of certain houses, including that of future West Virginia politician Charles J. Faulkner. Even Sherman's March to the Sea aimed to avoid malicious and pointless damage to the Confederate war effort. Lincoln also considered the bombardment of civilian areas, such as Baltimore and Richmond, a less dire prospect then because of less lethal weaponry compared to the next century, on these same grounds. Indeed, the author points out that legal theory of the time, based on Swiss scholar Emerich Vattel's Law of Nations, sided with bombardment. Lincoln allowed heavy-handed action only in lawless Missouri after other means had failed. He also signed death warrants for Sioux Indians in Minnesota and Confederate spies on the grounds of military necessity. Carnahan concludes that Lincoln "did not authorize or condone any violations of the laws of war against enemy civilians" (119). The president emerges as a principled leader whose victorious war policies used the most direct means possible without excessive brutality.

Lincoln on Trial holds up but has some shortcomings. Carnahan makes effective use of printed and online primary sources, particularly general orders and petitions found in the Official Records and Lincoln's Collected Works. However, he makes little effort to engage in scholarly debate. He generally supports the arguments of Mark Neely in Fate of Liberty and Mark Grimsley's Hard Hand of War, and partly echoes the passive Lincoln in David Herbert Donald's eponymous biography. The result is a less than original argument with standard evidence. At the very least, he counters amateur authors, neo-Confederates in particular, who condemn Lincoln as a war criminal. It is a readable, interesting, and compelling book in spite of these shortcomings.