Lecture Review: “Lincoln and the Laws of War” by Dr. Jason Frawley

By Avery C. Lentz ’14

Many historians would agree that Abraham Lincoln was one of the most complex individuals of the Civil War Era. He was a strong and fascinating politician. However, Lincoln’s leadership has generated mixed reviews among historians and Civil War buffs everywhere, particularly keeping divisions between the North and South. Dr. Frawley’s lecture, held in McCreary Hall at Gettysburg College, discussed how Lincoln navigated the Union through the war. In particular, Dr. Frawley considered the legalities of war and military conduct in the 1860s.
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Dr. Frawley’s lecture was in conjuncture with a series of lectures on Lincoln called “Lincoln and the Constitution,” which is a traveling exhibit with National Constitution Center. Dr. Frawley began by discussing the different versions of Civil War history, in particular, the fight against the romantic “Lost Cause” view of the Civil War. Many individuals have accused Lincoln of being an autocrat, tyrant, and even dictator. Texas politician, Larry Kilgore, appeared on the Daily Show with Jon Stewart, promoting his book on secession and comparing Lincoln to Adolf Hitler. Jack Kershaw, attorney of MLK, Jr. assassin James Earl Ray, believed that Lincoln was bloodthirsty and sicked his Union armies on Southern civilians intentionally. Many like Kershaw and Kilgore believed Lincoln behaved erratically by blatantly violating the Constitution. Even in 1861, CSA Gen. Beauregard criticized Lincoln for his policies; however, Lincoln would argue that “his policy was to have no policy”.

Dr. Frawley talked about the question of how to classify the South. At the start of the war, the Union approach was the strategy of conciliation due to the belief that a majority in the South were Unionists. However, after the Battle of Shiloh, when casualties mounted to 25,000 killed, and it became clear that the South was going to fight a hard war. Lincoln abandoned this concept of conciliation and began bringing the war to the South. The Supreme Court cases of Luther v. Borden (1849) and the Prize Cases (1863) said the Federal government could use military force to put down an internal insurrection. However, the only list of rules governing military conduct was the Articles of War (1806) and was completely out of date and insufficient for the Civil War.
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Both North and South used Emerich Vattel’s Law of Nations (1758) and William Paley’s Principles of Moral and Political Philosophy (1785) as models to further understand how armies were meant to function legally against civilians. Both documents said that civilians were off limits, but that “property” was up for grabs. Armies also relied on the experiences from the American Revolution and Napoleonic Wars as models. Both sides realized it was difficult to destroy your enemy’s army without affecting non-combatants completely.

Finally, Dr. Frawley talked about how Lincoln finally achieved his policy toward southern civilians thanks to Henry Halleck and Francis Lieber, the latter a Prussian lawyer and veteran of the Napoleonic Wars. Lieber came up with the “Lieber Code” which implied military necessity: the potential for destruction of property. It also warranted a vigorous pursuit of quick, but still humane war, which basically meant ‘anything goes’ in order to get it over with quickly. Lincoln approved this and didn’t make any changes to it, giving Grant and Sherman leeway to how their campaigns through the South. Overall, Dr. Frawley offered intriguing insight into how Lincoln navigated the Laws of War against the people of the Confederacy.

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