Federal War Crimes and Confederate Retaliation (1861-1865)

“Total War” was NOT a concept taught at West Point prior to the Civil War, where the war on civilians was considered anathema to “civilized warfare.” It was certainly NOT taught to cadets such as Grant, Sherman, Halleck and Sheridan when they attended the Academy.

The code of military conduct at the time was set by the Articles of War of 1806, which was in force until it was replaced in 1863 by the “Lieber Code” (also known as “General Order 100.)

The 1806 Code stated:

“Any officer or soldier who shall quit his post or colors to plunder and pillage shall suffer death or other such punishment as shall be ordered by a sentence of a general court-martial.”

However, this view ran contrary to the political desire to annihilate the enemy “root and branch”, which gripped the military and political elites in the North.  This was because it was not simply State Governments that were “in rebellion” against the Federal Government; it was the entire free population that was rejecting the domination of the Federal Government, which they felt had betrayed the compact they signed onto when they ratified the Constitution of 1789 by expanding Federal power over the states beyond the enumerated Constitutional limitations.  Having left British rule because they felt the British ruled WITHOUT the consent of the governed, the South came to the conclusion, after a long series of political crises, that the Federal Government of 1861 was now in the same position as the government of King George III.

They were determined to exercise their right to remove themselves from the control of the Federal Government in the same manner in which they removed themselves from the control of the British government. To prevent the South from exercising this right, the Federal Government needed to defeat and subjugate the Confederacy and to establish a new constitutional order in its place… a constitutional order where the Federal Government moved from a position where it was limited to enumerated Constitutional powers regarding the individual states to one where it was perpetual, indivisible, dominant, and exalted as “sacred.”

The war aim of the Federal Government in Washington was to break the “chains” of the Constitution which placed much governing power in the hands of the States and instead create a supreme National Government with the potential to exert almost unlimited authority.  Such authority would allow the backers of the Republican Party, those of the rising Northeastern Industrial and Railroad interests, to use the coercive power of the Federal Government to their own purposes over and against the power of the States to interfere.

To succeed in such a massive restructuring of the Government meant that the South could not just be militarily defeated on the battlefield… it has to be annihilated, its culture demonized and eradicated, its economy desolated and its political will broken so thoroughly that there would never again remain any question regarding Federal dominance over the States.

As Adam Badeau, who was on General Grant’s staff and was present at Appomattox notes:

“It was not victory that either side was playing for, but for existence.  If the rebels won, they destroyed a nation; if the government succeeded, it annihilated a rebellion.”

Of course, the Confederacy in no way wanted to “destroy” the United States, which would have continued, albeit in attenuated form as a Nation, after the South left.

For the South, however, the statement is entirely true: for the Federal Government to succeed in overturning the Constitution of 1879 and, in effect, create a “Second Republic” based on immensely increased Federal power, the Confederacy had to not just be defeated, BUT ANNIHILATED.

But if the earlier concepts of proper standards of war conflicted with those adopted by the Federal Government during the Civil War, what ARE “proper standards of war?”

Further, did the Federal Government, in adopting NEW standards of warfare, violate the very standards they adopted?

There were several standards of war that were in effect in the Western world during the time the Civil War took place:

Customary Usage is practices that go back hundreds and thousands of years not based on written treaties or conventions.  To meet the criteria of “Customary Usage” it must be a custom practiced by Nations; that is, there is an unwritten agreement among nations that such practice is mandated by custom.  For example, a white flag is considered to be indicating a truce by longstanding custom.

This convention grew out of the Crimean War and was signed by 10 European States excluding Great Britain.  The United States also did not sign and therefore was not bound by its articles.

Historically, the government of the United States had adhered to the international law code of the Swiss jurist, Emmerich de Vattel (1714-67), author of The Law of Nations, on the proper conduct of war. As late as 1862, the U.S. Supreme Court in rendering its opinion in the “Prize Cases” cited Vattel. Because of the emphasis, it placed on the protection of non-combatants, the Vattel code was repudiated by Lincoln who issued a new law governing warfare that lacked international standing – GENERAL ORDERS No. 100, known as the “Lieber Code” of 1863.

Joesph Fallon, E-book “Lincoln Uncensored” endnote  21 (LINK AVAILABLE?)

Francis Lieber was a German-American legal scholar, jurist and political philosopher; the code that bears his name (AKA General Order 100) was a series of 156 articles published in 1863.  Lincoln signed it as part of his Constitutional duty under Article II, which states that the President must supply the rules and regulations for the governance of the military.

It read: “The following ‘Instructions for the Government of Armies of the United States in the Field,’ prepared by Francis Lieber, LL.D., and revised by a board of officers, of which Maj. Gen. E. A. Hitchcock is president, having been approved by the President of the United States, he commands that they are published for the information of all concerned. By order of the Secretary of War: E. D. TOWNSEND, Assistant Adjutant-General, Washington, April 24, 1863.” The War of the Rebellion: a Compilation of the Official Records of the Union and Confederate Armies, also known as Official Records of the Union and Confederate armies or OR, Series III, Volume III, p. 148.