A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution

By Harold M. Hyman | Go to book overview

Chapter IX
Mars and the Constitution

W hatever individuals believed about the Constitution's adequacy to undergird the Civil War, almost every American assumed that certain restraints governed their Army's conduct in any war. This was a remarkable attitude, in light of history's dismal verdict that the worst human behavior appears during civil wars, especially when race is involved. For four years the Civil War combined these inducements to excess. Yet the conduct of the Civil War was not discreditable.

Americans shared a consensus that ascending civilization had raised man too high for bestial wartime ways, common in the not-very-distant past, to reoccur. The censure of enlightened Christendom bound nations to wage war decently, to treat capfives gently, and to abjure pillage, sack, and slaughter of civilians. Since Grotius's 1625 summary of the "law of war and peace," international laws, nations' domestic statutes, and armies' regulations had standardized these stipulations; the laws of nature and of nations governed the laws of war.1 But in addition, Americans believed that their Constitution bound their armed forces in ways less blessed foreigners did not enjoy.

Within a year after Sumter, the Supreme Court reinforced this consensus. It allowed the Confederacy the position which the President and the armed forces accorded it, of a de facto belliger

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1
Hugo Grotius, De Jure Belli ac Pacts Libri Tres, trans. F. W. Kelsey lr et al. ( Oxford, 1925) I, 3844; Morris Greenspan, The Modern Law of Land Warfare ( Berkeley and Los Angeles, 1959), ch. x.

-141-

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