Lieber’s pamphlet code also bolstered the commissions’ conceptual basis. What business, after all, did Lincoln and Holt have trying thousands of U.S. citizens in military courts? Judge Advocate John Lee had objected to military tribunals in 1862. As late as 1864, John A. Dix, commanding the Union’s Department of the East, asked Lieber to explain how military commissions could “take cognizance of . . . any violation of the law of war” by a U.S. citizen when the citizen was not “connected in any wise with the military service of the United States.” Lieber’s stern answer was that war implicated entire populations, not merely (as Rousseau had posited a century before) their armies in the field. “War is not carried on by arms alone,” Lieber’s code stated. The “native of a hostile country” was as much an enemy as the armed soldier, and martial law under “the laws and usages of war” extended “to property, and to persons,” regardless whether they were soldiers or civilians. Lieber told Dix that under the conditions of the Civil War, citizens could (“or rather must,” he corrected himself) “be tried by military courts, because there is no other way to try him and repress the crime which may endanger the whole country.” Indeed, Lieber was not only satisfied with the legality of the military tribunals that Holt’s judge advocates oversaw, he was proud of the United States’ role (and his own part in it) in expanding the reach of the law into domains once dominated by sheer violence. The “careful trials of spies [and] brigands,” he wrote to Halleck, were “a novel feature in the history of the Law of War.” After one spying case, Lieber boasted to Holt that “no person accused of being a spy, in the whole history of war, had ever so dignified and elaborate a trial.”
HOLT’S EFFORTS AND Lieber’s code went to the U.S. Supreme Court after the elaborate (but hardly dignified) arrest and military commission trial of the Lincoln administration’s most implacable northern critic.
In the early morning hours of May 5, 1863, an entire company of Union soldiers—as many as 100 men by some accounts—made its way by unmarked train to Clement Laird Vallandigham’s home in Dayton, Ohio, stormed it with fixed bayonets, and arrested Vallandigham in his bedroom as his wife and sister-in-law cowered behind him. Vallandigham was Ohio’s (and perhaps the North’s) most vocal opponent of the war. A former Democratic Party congressman, he had been giving incendiary antiwar stump speeches throughout the state, excoriating “Lincoln and his minions” and denouncing the conflict as “a war for the freedom of the blacks and the enslavement of the whites.” The new Union commander of the Department of the Ohio, General Ambrose Burnside, worried that Vallandigham’s speeches would undermine the Union’s ability to attract new recruits. Drawing on Lieber’s unpublished early draft of the rules of war, Burnside declared that “all persons found within our lines who commit acts for the benefit of the enemies of our country will be tried as spies or traitors, and, if convicted, will suffer death.”15 After another incendiary speech (delivered while Burnside’s undercover agents took notes in the crowd), Burnside ordered Vallandigham’s arrest.
The next day, May 6, Burnside hauled Vallandigham before a military commission in Cincinnati and charged him with publicly expressing sympathy for the rebellion with the purpose of hindering the U.S. government’s efforts to suppress it. Vallandigham refused even to enter a plea of not guilty: he was not, he insisted, triable by a military tribunal, for he was a U.S. citizen, and as such entitled under the Constitution to due process and a public jury trial in a court of law. But the commission, made up of seven officers from Burnside’s Department of the Ohio, refused to entertain the objection. After two days of trial, the officers adjourned to deliberate.
Not content to await the verdict, Vallandigham sought a writ of habeas corpus from Judge Humphrey Leavitt in the federal circuit court. The government’s response unveiled the legal strategy that had been forged by Holt and that was advanced in the code the Union would release in its final form just days later. To deliver it, Burnside sent two men with close ties to the Lincoln administration: Aaron Fyfe Perry, a leading Ohio Republican who had turned down a seat on the Supreme Court in 1861, and the federal district attorney, Flamen Ball, a former law partner of Treasury Secretary Salmon Chase. Perry argued that Burnside had arrested and tried Vallandigham under the international “laws of war, or martial law,” or what Perry (adapting language Halleck had inserted into Lieber’s draft code) called the “common law of nations.” Lieber’s draft, which was in its final stages of review by Stanton, expressed exactly the same idea, defining martial law as “military authority . . . in accordance with the laws and usages of war.” A nation at war, Perry recited, could “lawfully secure and make prisoners” of any “persons belonging to the opposite party (even the women and children).” Chase’s longtime law partner Flamen Ball summed up the broad implications of the U.S. position. “Ohio,” he said, “is at war because the United States are at war.” And in wartime, “the citizens of the state of Ohio are liable to the operation of the laws of war as administered ex necessitate rei [out of the necessity of things], by courts-martial or military commissions.” Sensing that he was in over his head, an overmatched Judge Leavitt ruled in the government’s favor.
After a week of deliberations, the commission pronounced Vallandigham guilty and sentenced him to prison for the remainder of the war. Lincoln promptly reduced the sentence to banishment from Union lines. But Vallandigham could not be bought off so easily. He petitioned the U.S. Supreme Court to reverse the conviction and sentence of the military commission. When the Court took up the case in February 1864, it let stand the Lincoln administration’s broad assertion of a law of war authority. The opinion by Justice James Moore Wayne noted that Burnside had acted “in conformity with the instructions approved by the President of the United States,” the instructions that (as the Court noted) had been prepared by Francis Lieber and Major General Ethan Allen Hitchcock. Quoting from the code’s Article 13, Justice Wayne observed approvingly that military commissions tried and punished offenses “under the common law of war.”
THE WORK OF Holt and his judge advocates had no analogue in the Confederate States of America. A small rebel office headed by assistant secretaries of war Albert Taylor Bledsoe, a former lawyer turned mathematics professor at the University of Virginia, and then John A. Campbell, a former justice of the United States Supreme Court, presided over a few military tribunals. When Confederate forces caught twenty-two Union raiders trying to destroy the railroad connecting Atlanta to Tennessee in the spring of 1862, for example, military tribunals convicted eight of the raiders as spies and executed them by hanging. But the Confederate Congress refused to appoint a judge advocate general or a judge advocate corps. In the very months of 1863 in which Holt, Lieber, and Halleck were crafting the Union’s expansive conception of the laws of war as a source of authority, the Confederate assistant adjutant general responsible for military justice denounced the idea of martial law as anathema to the Confederate Constitution. Officials in the rebel War Department ruled that there could be no military tribunal jurisdiction over persons residing in the Confederate States of America other than soldiers.
The shrinking Confederate lines of 1863 and 1864 meant that the Confederacy never had the need to develop anything like the Union’s judge advocate staff to dispense justice in occupied enemy territory. Campbell, the former justice, deprecated the significance of his work for the Confederacy as “irksome, uncongenial, and in most cases, trivial labor.” Captured black soldiers might have produced an expansion of the authority of Confederate military tribunals, but instead of treating their actions as war crimes, Jefferson Davis and the Confederate Congress sent black prisoners to the states to be dealt with under the state criminal laws.
It was the North, then, that made the law of war part of its strategy for winning the war. But in so doing, the Union raised a tension that has haunted the law throughout its history. Holt and the judge advocate corps treated the law of war not only as a restraint but as an instrument for increasing the power of a nation at
war. In this sense, the law of war was not at odds with campaigns such as Sherman’s March to the Sea. Both were efforts to bring to the South what Sherman called the “hard hand of war.”
Which Party Can Whip
SHERMAN’S MARCH THROUGH Georgia and South Carolina comes down to us differently than most of the moral controversies of the Civil War.
Consider the destruction of Athens, Georgia, in 1862. When Colonel John Basil Turchin allowed Union troops to sack the city, rebels cried foul. Surely this was a clear-cut violation of the standards of civilized conduct. But making sense of the episode quickly became difficult. Turchin claimed that he had been engaged in lawful reprisals against noncombatants who had fired on Union troops from their homes and participated in the execution of Union prisoners. Or consider the events at Chambersburg, Pennsylvania, in July 1864, when Confederate forces burned the town after it refused to hand over $100,000 in gold. Confederate generals John McCausland and Bradley T. Johnson defended their actions as retaliation for Union general David Hunter’s destruction of the Virginia Military Institute (McCausland’s alma mater) and the Virginia governor’s mansion. The same pattern emerged in Missouri. When Colonel John McNeil ordered ten captive Confederate soldiers taken out and shot by firing squad in Palmyra, Missouri, he defended his actions as justified retaliation for the execution of a local Union sympathizer by Confederate forces. When Confederate sympathizers protested Union general Thomas Ewing’s order that four counties be completely depopulated, Ewing (who had grown up in the same home as William Tecumseh Sherman) countered that the population had provided crucial support for the rebel guerrilla William Quantrill, whose bloody raid on Lawrence, Kansas, just days before had killed 150 Unionist men and boys. Quantrill in turn cited a history of internecine violence between anti- and pro-slavery guerrilla forces that stretched back before the war to the days of John Brown in the 1850s.
Again and again, moral controversies over conduct in the war lay obscured by a thick fog of charge and countercharge, with no discernable stopping point. The same troubles plagued bitter guerrilla actions across the Upper South; each side accused the other of the first atrocity. The first wrongdoer usually proved elusive. Rumors of exploding bullets used by one side were matched by claims of barbaric incendiary devices said to be used by the other. When the Union blockaded Charleston by sinking old vessels in the mouth of the harbor, the South booby-trapped bodies along South Carolina’s coast. Even at Fort Pillow, where historians are confident that most of the postwar denials were false, students of the war have had to wade through thick layers of obfuscation to find the truth.
But if most of the war’s contested episodes lay hidden in the fog of war, Sherman’s march comes to us as if in the bright sunshine of a cloudless day. For Sherman did not claim that his actions were aberrations justified by his enemy’s atrocities. He aimed to fight a war that would be as candid as it was uncompromising.
LITTLE IN SHERMAN’S background suggested the unforgiving mode of warfare for which he would become known. A West Point graduate of the class of 1840, where he graduated sixth out of forty-two, Sherman had been brought up in the orthodox world of antebellum military thought. He happily spent much of his early military career stationed in the South and disapproved when his stepbrother Thomas Ewing took up antislavery politics. After a series of failed business enterprises in California and Missouri, he took a job as the superintendent of the Louisiana Military Seminary and settled down comfortably in slaveholding Baton Rouge in 1859 on the very eve of the secession.
Sherman’s initial approach to the conflict closely resembled McClellan’s idea of enlightened warfare. In the Department of the Cumberland in 1861, he punished soldiers for property offenses against noncombatants and provided compensation for property taken by his men. As the historian Charles Royster rightly put it, Sherman’s “standard of conduct was the West Point ideal of a regular army, keeping warfare away from noncombatants for the sake of both humanity and strict discipline.” After the First Battle of Bull Run, Sherman cursed the volunteers: “Goths or Vandals,” he called them, who had no “respect for the lives and property of friends and foes.” He complained that “petty thieving and pillaging” by Union soldiers did the Union cause “infinite harm.” Sherman shared McClellan’s views on slavery as well, instructing his officers that “fugitive slaves must be delivered up on application of their masters.” His thinking reflected Rousseau’s idea that the enemy was an army, not a people.
As the war ground forward, however, Rousseau’s notion no longer appeared to Sherman as a tenable description of the conflict. Serving as the military governor of Memphis in the summer of 1862, Sherman found himself fighting an unending battle not against southern armies but against shadowy guerrillas. The South, he came to see, was sustained not only by its armies but by the farmers who at night turned into fighters, by the newspapers that kept up Confederate morale, and by the women who made sure production on the plantations continued apace in the absence of their husbands. By August, Sherman was becoming convinced that “all in the South are enemies of all in the North,” that the “entire South, man, woman, and child, is against us, armed and determined.” In the war between North and South, he wrote, “all the People of the one” side were “enemies of the other.” Perhaps European wars of the eighteenth century had lived up to Rousseau’s model. But Sherman told Henry Halleck that the Civil War was unlike those conflicts because the United States was “not only fighting hostile armies, but a hostile people.” Sherman laid out the implications: We must, he told Halleck, make not only the “organized armies” of the South but also the “old and young, rich and poor, feel the hard hand of war.”
Once Sherman had come to see the population of the South as his enemy, it was an easy step to adopt a strategy of attacks on civilian infrastructure. Newly promoted to general-in-chief, Ulysses S. Grant had already ordered Sherman to inflict “all the damage you can” against the “war resources” of the South. Now, as Sherman prepared to set out from Atlanta on what would become the most celebrated (and reviled) military campaign in American history, Halleck advised him to “destroy every mill and factory within reach.” Sherman took to the plan with a stern enthusiasm. He would, he said, “make a wreck of the road and of the country” behind him, destroy Atlanta, and then move with his most battle-hardened 60,000 men, “smashing things to the sea” and ensuring “the utter destruction” of Georgia’s “roads, houses, and people” so as to “cripple their military resources.” After Sherman took Savannah in December, Halleck urged him to proceed to Charleston and destroy it for generations to come: “If a little salt should be sown upon its site,” Halleck encouraged, “it may prevent growth of future crops of nullification and secession.”
But Sherman did not stop at attacks on infrastructure. He attacked the morale of the southern people, taking the war directly to southern noncombatants to destroy the population’s willingness to fight. “I propose,” he wrote in mid-October, “to demonstrate the vulnerability of the South, and make its inhabitants feel that war and individual ruin are synonymous terms.” To Grant, he said: “I can make the march, and make Georgia howl!” To Lincoln, he wrote that he and his army would commit themselves to “desolating the land as we progress” until Georgia withdrew its quota from the armies of the South. To win the war, he told Halleck in September 1863, required a conquest of the South so unrelenting that it would cause “all idea of the establishment of a Southern Confederacy” to be abandoned. “I would not coax them, or even meet them half-way,” Sherman said, “but make them so sick of war that generations would pass away before they would again appeal to it.”
Sherman’s idea of war against the South contained limits. It did not extend to personal violence directed at noncombatants. He aimed to limit the violence against white southern noncombatants almost entirely to property destruction.
The destruction Sherman wrought was vast nonetheless. On November 12, he set out from a ruined Atlanta. For the next month, th
e two wings of his massive army carved a path of destruction 30 to 60 miles wide and almost 300 miles long, annihilating or confiscating “anything of any military value” between Atlanta and the sea: “railroad tracks, machinery, cotton mills, horses, mules, and foodstuffs—and much more.” In Georgia, his men confiscated or destroyed 90,000 bales of cotton worth some $36 million, along with almost 7,000 mules and horses, more than 13,000 head of cattle, 10 million pounds of grain and another 10 million pounds of fodder, as well as 6 million rations of beef, bread, coffee, and sugar. Sherman later estimated the total value of goods confiscated and destroyed at $100 million, though he thought that only $20 million of that had been used by his men. (“The remainder,” he stated, “is simple waste and destruction.”) When Sherman’s army encountered the homes of prominent secessionists, the destruction became purposefully more punishing still. At the residence of former U.S. senator Howell Cobb, Sherman instructed his men to “spare nothing,” and that night, he later remembered, “huge bonfires consumed the fence-rails” and virtually everything else that would burn on Cobb’s plantation.
Once Sherman’s men moved north from Georgia into South Carolina, the destruction became even greater. The “whole army,” Sherman told Halleck, “is burning with an insatiable desire to wreak vengeance upon South Carolina.” And wreak vengeance they did. Sherman’s troops burned entire towns along their march to the state capital, Columbia. The capital itself was almost completely destroyed. Who started the fires in Columbia has long been contested. On a windy day, Wade Hampton’s Confederate cavalry had tried to burn the city’s cotton in order to deny it to Sherman’s approaching army. Those fires almost certainly spread to nearby structures. But there is little doubt that many of Sherman’s men aided in the destruction of Columbia by setting new buildings ablaze.
Lincoln's Code Page 36