Lincoln on Trial: Southern Civilians and the Law of War

By Burrus M. Carnahan | Go to book overview

1
“With the Law of War
in Time of War”
Applying International Law to a Civil War

At the beginning of the Civil War, Jefferson Davis and Abraham Lincoln had diametrically opposed views on the nature of the conflict and the laws that should apply to the conduct of hostilities and the treatment of enemy persons. The Confederate government argued that it represented an independent nation at war with another independent nation, and that their relations were regulated solely by international law. After secession, the Constitution of the United States was irrelevant, in the Confederate view.

In contrast, throughout the war Lincoln maintained that the Confederate states had not seceded, and could not secede, from the Union. In his view, the U.S. government was dealing not with a Confederate government, but with a group of rebellious individual citizens.1 In principle, then, for Lincoln the Constitution, not international law, governed relations between the Federal government and its rebellious Southern citizens.

One result of this policy was that the Lincoln administration was extremely sensitive to any act that might accord a degree of legitimacy to the Confederate government, or to the rebellious state governments. The law of war applied to hostilities between independent nations, and applying it, in whole or in part, to the rebels could be another incremental step toward recognition of the Confederacy as a true government. Some of his Radical Republican critics believed President Lincoln had already stumbled in April 1861 when he declared a blockade of Southern ports, since under international law this effectively recognized the

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