By William F.B. Vodrey
The Cleveland Civil War Roundtable
Copyright © 2013, All Rights Reserved
Every now and then I get into arguments with people about the law of war.
“There’s no such thing as the law of war,” they say (or words to that effect). “War is hell. Anything goes. The only thing that matters is winning.”
“Oh, really?” I reply. “So you’d have no problem with, say, an officer ordering his men to kill all the unarmed civilians in a foreign town they occupy after it surrenders? Or, as a matter of policy, to always shoot prisoners after they surrender? Or work them to death in a concentration camp? Or torture or rape them? That’d all be fine, right, because there’s no law of war?”
“Uh…no,” they reply.
Clearly there is a law of war – but just how widely observed it is, and just how effective it actually is, varies from war to war. In Justice in Blue and Gray: A Legal History of the Civil War, Scottish legal scholar Stephen C. Neff explores the law of war as it existed and was honored, or more than occasionally breached, during the American Civil War.
Both the United States, as a republic under the rule of law, and the Confederate States, as a group of states attempting to secede from that republic and win independence in its own right, intended from the outset to wage war within the bounds of the law as it was then understood. Both wanted to maintain domestic support and win international backing, and being perceived as lawless or ruthlessly unprincipled would not be helpful in achieving those goals.
The most influential source on the law of war in 1861 was the Swiss writer Emmerich de Vattel. His 1758 book The Law of Nations was a key early statement of the law of war (including civil war) and international relations. Henry W. Halleck (yes, that Henry W. Halleck) wrote the treatise International Law, or Rules Regulating the Intercourse of States in Peace and War in 1861, further refining and updating Vattel’s arguments. The Lieber Code, written at Halleck’s request by expatriate Prussian lawyer Francis Lieber, guided U.S. military legal policy during the Civil War, and it, in turn, had a major impact on the development of the Hague Rules, which to this day provide the framework for the international law of war.
Emmerich de Vattel 
Henry W. Halleck 
Francis Lieber
Neff writes, “It is…interesting, and ironic, that neither side in the great struggle of 1861-1865 regarded the contest as a civil war. The North regarded it as a law-enforcement enterprise, as the subduing of a rebellion (albeit on a large material scale), rather than as a war. The South regarded it as a war, but not a civil war, since it saw itself as an independent nation.” The Provisional Confederate Congress actually passed a declaration of war on May 6, 1861, but the U.S. Congress never did.
On the legal front, at least, the U.S. had a somewhat schizophrenic approach to the war. President Abraham Lincoln, a skilled lawyer but with no previous experience in the law of war, would use his country’s belligerent rights, those arising under the international law of war, as he saw fit when it was in the national interest to do so, but would also use its sovereign rights, those arising under the Constitution and the peacetime law of the land, when those best fit the situation. Neff writes, “On the field of battle, [the United States] acted as a belligerent. Off that field, however, it acted as a sovereign…and courts generally supported this stance.”
Neff is very thorough. He explores the prewar legal nature of the United States (was it, as George Washington wrote, “an indissoluble Union of the states…[bound] by a chain which never can be broken,” or, as secessionists argued, a compact which could be dissolved by any state which so desired?); the exercise of emergency powers; guerilla warfare, espionage, and the targeting of civilian populations; the occupation of enemy territory, terrorism, reprisals, and the confiscation of private property, either to support one’s own military efforts or to punish foes; slavery and emancipation; and civil liberties, treason, martial law, habeas corpus, prisoners of war, and military tribunals. The author notes that Andersonville commandant Henry Wirz was not, as is commonly thought, the only person tried for war crimes during the rebellion; Confederate guerilla Champ Ferguson (convicted and executed) and Brig. Gen. Hugh W. Mercer (tried and acquitted) also were. There is a lot on Neff’s plate, including the many legal issues surrounding the Lincoln assassination conspiracy, but he handles it all clearly and concisely.
The author knows his stuff, and sprinkles interesting factoids throughout: The Empire of Brazil and the Kingdom of Hawaii both declared their neutrality during the Civil War. Robert E. Lee did not approve of Confederate partisan activity, which he said “gives license to many deserters and marauders [who] commit depredations on friend and foe alike.” Congress wrestled with whether or how to seat those elected from occupied, pro-Union areas of Southern states; two Congressmen from Virginia were refused their seats in the U.S. House of Representatives when it was learned that they had won with just 25 and 10 votes, respectively – not their winning margins, mind you, but the total number of votes cast in those elections. Thomas “Stonewall” Jackson (at Harpers Ferry, VA) and Flag Officer David G. Farragut (at Donaldsville, LA) both ordered the widespread destruction of enemy property before Sherman ever did. In 1867, a man argued that he could not be tried for bigamy, since his second wartime wedding had been under the pro-Confederate state government’s laws; the Supreme Court of Virginia said, in essence, “Nice try.”
The Civil War cast a long shadow over American law for many years to come. Claims for compensation for captured or abandoned property were presented decades after the guns fell silent, with the U.S. Supreme Court dealing with one such case as late as 1921. Pensions were paid to soldiers and their next of kin through 1958. And you may be surprised, as I was, to learn how many of the war’s legal questions are still not entirely answered. Neff notes that many of them gained new salience with the terrorist attacks of September 11, 2001 and the beginning of the War on Terror.
In the end, the verdict of the Civil War battlefield was more important than the pronouncement of any lawyer, magistrate, or judge, and history has since largely vindicated what Neff calls the Lincoln Administration’s “legally adventurous” approach to the conflict. Despite too many typos and a handful of minor factual errors, Justice in Blue and Gray: A Legal History of the Civil War is an interesting and in-depth exploration of the war’s legal issues, and I recommend it.
Justice in Blue and Gray: A Legal History of the Civil War by Stephen C. Neff
From the publisher: Stephen Neff offers the first comprehensive study of the wide range of legal issues arising from the American Civil War, many of which resonate in debates to this day.
Neff examines the lawfulness of secession, executive and legislative governmental powers, and laws governing the conduct of war. Whether the United States acted as a sovereign or a belligerent had legal consequences, including treating Confederates as rebellious citizens or foreign nationals in war. Property questions played a key role, especially when it came to the process of emancipation. Executive detentions and trials by military commissions tested civil liberties, and the end of the war produced a raft of issues on the status of the Southern states, the legality of Confederate acts, clemency, and compensation. A compelling aspect of the book is the inclusion of international law, as Neff situates the conflict within the general laws of war and details neutrality issues, where the Civil War broke important new legal ground.
This book not only provides an accessible and informative legal portrait of this critical period but also illuminates how legal issues arise in a time of crisis, what impact they have, and how courts attempt to resolve them.
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