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Book Review Lincoln on Trial: Southern Civilians and the Law of War

By Burrus M. Carnahan

Reviewed by Michael Burkhimer

The Smithsonian Associates Civil War E-Mail Newsletter, Volume 10, Number 7

A disturbing trend in Civil War publishing has been the successful marketing of neo-Confederate and "Lost Cause" tomes to the true believers. Those who wish to believe the worse about Lincoln because of either modern-day political extremism or the desire to believe their Confederate and Southern ancestors could never have done anything wrong can find many books that cater to them. Books that characterize Lincoln as a sort of 19th century Pol Pot have found ready markets. Titles like Lincoln Unmasked and Lincoln Uber Alles: Dictatorship Comes to America highlight a charge that is popular with the anti-Lincoln cult. That is that Lincoln was a dictator or war criminal who was responsible for gross violations of the Constitution and the laws of war.

Unfortunately, the evidence in these books is inevitably weak. Most are based on idiosyncratic readings of the Constitution and a complete rewriting of 19th century American history that removes slavery as the huge issue it was in order to make the tariff or states’ rights the central issue despite the overwhelming evidence to the contrary. Many are also essentially pushing modern-day extremist politics by using pseudo-history to justify the positions taken.

Thankfully, a scholar with a background in military law and international law regarding the rules of war has written a thoughtful and peer reviewed book on Lincoln and this topic. Burrus Carnahan’s Lincoln on Trial: Southern Civilians and the Law of War is well worth reading for all those who want a serious look at this subject without the glib slogans. As Carnahan states, "Where treatment of enemy civilians is concerned, it is easy to make emotionally charged accusations against President Lincoln and his officers. Addressing such charges seriously is more difficult."

One area of confusion that Carnahan immediately focuses on was how the Lincoln administration looked at the Confederacy. The rules of war as they existed in the 19th century applied to two nations at war. Lincoln and the Federal government did not regard the Confederate States of America as a legitimate government. They instead viewed the states that made it up as being in rebellion to the legitimate government. In that case, Lincoln could in fact order captured Confederate soldiers tried for treason and executed. Instead, Lincoln wisely treated the Confederacy de facto as an independent nation in order to avoid many of the problems like these, that would have ensued had he not done so. There were of course some early missteps. Lincoln at first wanted to treat Confederate privateers as pirates liable to hanging but stopped due to Confederate threats to hang Union officers. Much of the confusion about Lincoln and the rules of war is explainable by the odd nature and contradictions of any civil war.

Carnahan gives great prominence to the Lieber Code. The Code was a set of rules for war drawn up by Union officers. The code was based on precedents established in America’s previous wars and Europe’s experiences. It was signed by Lincoln and was very influential, being adopted by Prussia and being the grandfather of other documents that eventually led to the Geneva Convention. It is important to note that under the standards of the time, seizing enemy property for military necessity was considered perfectly legal. The bombardment of cities during sieges was also considered normal and legal. For example, the first case of this in the war was under the orders of Stonewall Jackson when he ordered his artillery to open up on Harper’s Ferry, even though there were civilians present during the Antietam campaign. It was not seen as a "war crime." Retaliation killings for guerilla warfare were also considered justifiable under the "customs of war." So throwing around the term "war criminal" is somewhat anachronistic. But even under modern standards, considering what he faced, Lincoln would not fit the description of a war criminal. This is not the same as saying atrocities did not occur by both sides during the war.

Carnahan concludes that Lincoln ultimately was not a war criminal. He concludes, "Under the standards of his time, President Lincoln did not authorize or condone any violations of the laws of war against enemy civilians." Lincoln knew of the hardships of war and the ugly passions it inevitably unleashed. General David Hunter’s random burning of Southern homes and the Confederate attempt to pile up a high civilian body count by burning down New York City hotels and tourist destinations are examples of this. Lincoln knew that a hard war was necessary for victory but thought that nothing should be done for "malice" or "revenge." He often interfered with his generals to mitigate the worst excesses.

Reading Carnahan’s Lincoln on Trial: Southern Civilians and the Law of War is also a good reminder that there are no easy answers in a civil war. Abraham Lincoln once called military glory, "that attractive rainbow, that rises in showers of blood---that serpent's eye, that charms to destroy." Thankfully, Lincoln attempted to balance humanity and victory as much as possible. Carnahan’s book will reward the reader who wants to take a mature look at these issues.

Michael Burkhimer is the review editor of the Lincoln Herald, a quarterly publication from LMU devoted to Abraham Lincoln and the Civil War. He is the author of two books on Lincoln, 100 Essential Lincoln Books and Lincoln's Christianity. His articles and reviews have appeared in the Lincoln Herald, Journal of the Abraham Lincoln Association, Civil War Times, and the Surratt Courier among others. He teaches American History at Haverford School District in Pennsylvania. He is currently co-editing with Frank J. Williams a volume entitled, The Mary Lincoln Enigma: Historians on America's Most Controversial First Lady for Southern Illinois University Press due for release in 2011 or 2012. He has spoken at a number of academic conferences on the Civil War.