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Moral Man, Immoral War?: A Historiographical Study of Morality and Ethics in the American Civil War – Part IV

Moral Man, Immoral War?: A Historiographical Study of Morality and Ethics in the American Civil War – Part IV

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In the fourth installment of this multi-part post, contributing editor Joshua Ward Jeffery continues an examination and discussion of the historiography of morality and ethics in the American Civil War. You can find Part I here, Part II here, and Part III here.

McPherson judged Lincoln’s morality quite differently. In The Battle Cry of Freedom, McPherson viewed Lincoln’s issuance of the Emancipation Proclamation as much more than a simple measure to escalate the conflict to total war.  To be sure, McPherson did see the proclamation as a war measure, but more importantly, he saw it as one of several tools that Lincoln applied at the same time in order to do what was right.[50] As McPherson interpreted it, Lincoln employed a multi-pronged strategy to eliminate slavery: by pushing for gradual, compensated emancipation in border states, by advocating the colonization of freed African-Americans, by issuing the proclamation in order to free slaves in Confederate States as Union armies took additional territory, and through other legal and Constitutional means.[51] McPherson also saw Lincoln’s movement towards the proclamation as one of “intentional ambiguity,” where he intentionally kept parties from all sides off balance and unsure of his true intentions until the moment that he was ready to reveal his hand.[52]  To McPherson, such deception was not only a strong political move, but also a very moral one, as to him, the true evil was not an escalation to total war or the means of that total war once it came about, but slavery.

    Like McPherson, Burris Carnahan had no qualms with Lincoln’s pursuit of total war. Carnahan, Professorial Lecturer in Law at the George Washington University School of Law, argued in two succinct volumes a thesis the opposite of Stout: Lincoln’s prosecution of the war was indeed moral because it accorded with the Law of Nations, and therefore, according to the Just War Tradition, was engaged in justly. Burris’ first book on the subject, Act of Justice, explored Lincoln’s issuance and enforcement of the Emancipation Proclamation as an act of war.  Carnahan set out to fill what he saw as a gap in the historiography, stating that “Although there have been many thoughtful efforts to explore the constitutional context of the Emancipation Proclamation, the rest of the proclamation’s legal context remains largely uncharted territory.”[53]  Carnahan proceeded to explore that context, relating the Emancipation Proclamation not so much as a legal measure under the U.S. Constitution, but as a war measure permitted by international law.  Carnahan showed that most American legal scholars believed that during the normal course of events, the federal government had no jurisdiction over slavery.[54] However, Carnahan discovered that Charles Sumner, the ardent abolitionist, pleaded with Lincoln to seize slaves as a war measure at the very beginning of the war, appealing to John Quincy Adam’s work before a joint tribunal for war claims between Great Britain and the United States in the aftermath of the War of 1812. Adam’s work and his later speeches demonstrated that the seizure and freeing of slaves as a military measure was allowed under the Law of Nations, and that the British not only freed American slaves during the war, but that the federal government had previously freed Southern slaves as a war measure during conflicts with Native American tribes.[55]  Carnahan then traced the use of emancipation of slaves as a war measure in Venezuela and Columbia in 1814, as well as emancipation of British slaves who reached Spanish Florida in the 1680s.[56] This history Lincoln knew well, as it was described to him by men such as Senator Sumner, Secretary of War Stanton, and Lincoln friend Orville Hickman Browning.[57]

    After Carnahan established that the Law of Nations allowed emancipation as a war measure, he moved on to prove that as a domestic measure, the Emancipation Proclamation might not have survived legal challenges after the end of the war.  Appealing to case law from the War of 1812 and the Mexican War, Carnahan demonstrated that the U.S. Supreme Court under Chief Justice Taney (the same justice who authored the Dred Scott decision) rejected federal arguments for unlimited power in seizing private property during times of war, and in fact made federal officers personally liable for property they seized under the doctrine of military necessity.[58]

    After demonstrating issues in domestic law with federal emancipation, Carnahan explored the development of Lincoln’s thought and treatment of the Confederacy from a band of conspiring insurrectionist rebels to a fully armed and recognized belligerent force under the Laws of War.[59]  As is well known, Lincoln, by his lack of understanding of International Law at the beginning of his Presidency, declared a blockade against the South, which amounted to an acknowledgement of their belligerent status under the Laws of War.[60] However, Carnahan took analysis of the inadvertent application of the Law of Nations to the Confederacy to a new level by exploring how Union commanders, through their taking of Prisoners of War, use of the Flag of Truce, and other usages of war, also accidentally recognized the Confederacy as a legitimate belligerent.[61]

    Starting in 1863, the federal government began to officially recognize the Confederacy as a legal belligerent to which the Laws of War applied.[62] Once this was done, it was an easy step from recognition to the application of principles such as military necessity to the fight against the Confederacy. In this vein, Lincoln authorized the adoption of the Lieber Code, a distillation and “codification of the law of war” for U.S. Forces that remains in force to this day.[63]  The adoption of the Lieber Code was, in effect, a enshrining of total war in U.S. military policy.  Similarly, Lincoln would then employ the Emancipation Proclamation as a tool of military necessity consistent with the Lieber Code and International Law.  The proclamation became a “weapon of war,” that had both immediate and future consequences. According to Carnahan, “after General Order 100 (the Lieber Code), whenever the U.S. Army marched into enemy territory in a future war any persons there held as slaves would be free. Now freedom would follow the flag.”[64]

    Taken altogether, Carnahan’s history of the development of the proclamation shows Lincoln the lawyer as developing his understandings of International Law and Military Necessity in order to overcome Constitutional problems with emancipation.[65]  Such a development made Lincoln out to be not only a skilled attorney and politician, but a man of strong moral character who sought to overturn slavery legally and finally at the beginning of the war.  I found Carnahan’s analysis of Lincoln, his development of the proclamation as a weapon of war, and the constitutional and international legal intricacies of freeing Southern black slaves to be quite convincing.  While most reviewers praised Carnahan’s book, not all scholars were pleased. In a review appearing in The Review of Politics, Herman Belz wrote:

Although provocative and illuminating Act of Justice under theorized as a consideration of the relationship between the U.S. Constitution and the law of war. A premise of the study is a distinction between constitutional context and legal context Carnahan makes no effort however, to define the constitutional context or to explain how it has been adequately explored in relation to the Emancipation Proclamation.[66]

I found Belz’s critique puzzling, because while Carnahan does make the historiographical claim that the Constitutional context of the Emancipation Proclamation had been explored well, his reason for writing this monograph was not to explore that context further, but to explore the context of the proclamation under International Law.  While flushing out the historiography would be helpful in such a text, the lack of such work does not make the book “under theorized.” Belz closes his review with the statement that “Finally, it is a stretch to say that the Emancipation Proclamation presented itself as an ‘act of justice’ in virtue of the right of emancipation of an oppressed people under the law of war.”[67]  Belz cites formulations of international law under Vattel regarding the liberation of citizens in a portion of the conquered Swiss Confederacy and fails to see the relationship between the Swiss case and Southern slaves. Such a statement is bizarre because Carnahan did not cite Vattel in this case, and ignored the fact that Carnahan’s main argument is that the slaves were freed under the concept of military necessity as allowed under the Laws of War.

    Carnahan’s second volume examined the Laws of War as it applied to the rest of the conflict. Significantly, one of Carnahan’s major arguments in his second volume was that the even though the war was in fact a Civil War and not an international conflict, the Constitution, as interpreted by the Supreme Court, invested Lincoln as Commander in Chief with the same authority to act in an insurrection as he had in a full-on war with another nation-state.[68] Therefore, while Lincoln was acting in accordance with the Laws of War, his legal authority to apply those laws to the conflict, according to the Court, was none other than the U.S. Constitution.[69]  Carnahan, in his own way then, answered the critiques of Belz regarding Carnahan’s book on the Emancipation Proclamation and the Laws of War. I found Carnahan’s discussion of the relationship between the Constitution and the Law of Nations, or the “usages of war,”[70] to quote the court, to be quite satisfying and an important addition to the scholarship on the subject.

    But while Carnahan’s discussion on the relationship between the Constitution and the Laws of War were satisfying, much of Carnahan’s later analysis of the conflict, viewed through the lens of the Lieber Code, was much less so.  Carnahan argued that the Lieber Code “remains the best summary of the laws and customs of war as they existed in the middle of the nineteenth century.”[71]  Such a statement is problematic from a number of points. First, it can be argued that the customs and laws of war are separate, and that in some instances, diverge.  In other words, what was legal in the nineteenth century may not fully comport with what was considered to be just under the customs of war as enumerated by Just War Theory.  Furthermore, because as mentioned above, Lincoln’s legal authority for putting down the Confederate insurrection was first and foremost granted by the Constitution, which enshrined federal law as the law of the land, the adoption of the Lieber Code as a piece of federal military law necessitates that the Code was in fact “the law of war” for the United States. In other words, Carnahan’s logic, for an attorney, is quite circular.

[50] McPherson, Battle Cry of Freedom, 562-3.

[51] Ibid, 562-3; For Lincoln’s use of colonization as one of several pieces meant to either ensure the end of slavery or to prepare the way for abolition, see Ibid, 509-510.

[52] Ibid, 510.

[53] Carnahan, Act of Justice, 2.

[54] Ibid, 5.

[55] Ibid, 6-14.

[56] Ibid, 16.

[57] Ibid, 5.

[58] Ibid, 25-40.

[59] Ibid, 41- 60

[60] Ibid, 43.

[61] Ibid, 58-60.

[62] Ibid, 61.

[63] Ibid, 127-9.

[64] Ibid, 130.

[65] Ibid, 140-2.

[66] Herman Belz, review of Ct of Justice: Lincoln’s Emancipation Proclamation and the Law of War, by Burris Carnahan, The Review of Politics 70, no. 3 (Summer 2008): 507.

[67] Ibid, 508.

[68] Carnahan, Lincoln on Trial, 24-25.

[69] Ibid, 23-28.

[70] Ibid, 24.

[71] Ibid, 31.

This essay will be continued in a future post.

Moral Man, Immoral War?: A Historiographical Study of Morality and Ethics in the American Civil War

Moral Man, Immoral War?: A Historiographical Study of Morality and Ethics in the American Civil War

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In this multi-part post, contributing editor Joshua Ward Jeffery begins an examination and discussion of the historiography of morality and ethics in the American Civil War.

The American Civil War is arguably one of the most contentious events in U.S. History. Even now, over one hundred and fifty years after the conclusion of the war, questions regarding the causes of the war, whether the war was just, why the North won and the South lost, or whether President Lincoln was a hero or a tyrant, are continually asked and rehashed by both historians and the public alike. It is well known that the answers that people provide to many of these questions often depend upon the social and geographical location of the individual answering the question. This is amply demonstrated by the various names that are used to denote the war. In the North, the war is typically known as “the American Civil War,” or less often as “the War of the Rebellion.” In the South, the war is often titled “the War Between the States,” or more tellingly, “the War of Northern Aggression.”

While there is no way to eliminate geographical or social bias in attempts to answer these historical questions, a cadre of historians have attempted to find a more objective framework for the evaluation of these and other questions. A natural genre of history for the exploration of more objective frameworks for these critical questions is the field of religion and war. As this subfield has expanded from an almost ignored area of study to one with that is gaining more and more attention, it is unsurprising that historians interested in the interplay between religion and war would attempt to answer these questions through a moral framework.[1] Thus, some historians have turned to the use of religious and philosophical ethics, just war theory, and international law in order to provide a more balanced analysis of these questions. Specifically, most of these historians have focused their work on President Abraham Lincoln, the U.S. head of state and the Commander and Chief of the Union’s armed forces. Sifting through massive amounts of monographs and articles on Lincoln and the war as a whole, these scholars have created an interesting and notable contribution to the scholarly understanding of Lincoln and the war.

However, while the historians that have examined the war and Lincoln through this lens have done an excellent job in engaging the historiography of these two subjects as a whole, they have largely neglected to take notice of the fact that they have begun their own historiographical tradition. In this historiographical study, I will show that while the subject of Lincoln’s morality and ethics have begun to be covered fairly well for the small number of books which have been issued, more work remains to be done, especially with regards to the historiography of this new genre in Civil War studies.

In this essay, I will examine four monographs that have closely scrutinized Lincoln through the lens of ethics, morality, and law, and which have provided a more objective framework for the examination of critical questions in the historiography of the American Civil War. Additionally, I will examine a fifth text in juxtaposition to these works, due to an interesting scholarly dispute that began between two historians because of the questioning of Lincoln’s wartime ethics.

These five works include Lincoln’s Virtues: An Ethical Biography by William Lee Miller[2], Upon the Altar of the Nation: A Moral History of the Civil War, by Harry S. Stout[3], Battle Cry of Freedom: The Civil War Era, by James McPherson[4], Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War, by Burrus M. Carnahan[5], and Lincoln on Trial: Southern Civilians and the Law of War, also by Carnahan[6].

The first historian that examined Lincoln’s life and work specifically through the lens of ethics and morality was William Lee Miller. Miller, who at the time of publication was the White Burkett Miller Center Scholar in Residence at the University of Virginia, and had served previously as the Commonwealth Professor of Political and Social Thought at the University of Virginia. Miller considered himself an ethicist, not a historian, and had earned his PhD from Yale Divinity School in Religious Social Ethics[7]. While Lincoln’s Virtues is a biography and history of the President from his early life until his inauguration, Miller’s training as an ethicist and philosopher easily shined through the text. Miller’s work was not simply a moralistic retelling of the Lincoln’s life; it was a serious socioethical analysis.

In that vein, Miller intended to demonstrate that Lincoln was “an unusually worthy human being,” and to reexamine Lincoln’s life story in order to demonstrate the “moral meaning” of “his rise to power.”[8] Miller believed this work badly needed to be done because he thought that the “mythic picture” of Lincoln as the great emancipator, savior of the federal union, and then martyr for those causes tended to have a “perversely damaging effect on our understanding of Lincoln as a real human being in a real world… his actual moral achievements are discounted.”[9]

One of the main ethical successes that Miller found in the life of Lincoln was his self-education. Miller spent much time and energy on Lincoln’s lack of a formal education, and then demonstrated that despite this deficit, Lincoln worked hard to acquire knowledge that would allow him to escape farming (a pursuit he detested) and provide him with access to a career that would permit him to exercise his mind over his muscles. Lincoln’s cousin Dennis Hanks reported that Lincoln “was always reading, scribbling, writing, ciphering, writing Poetry, etc.”[10] Lincoln learned law not by attending law school, but by borrowing a copy of Blackstone’s Commentaries on the Laws of England and studying them thoroughly. Through his own self study he was able to gain enough knowledge and skill to be admitted to the bar, and then quickly became a partner in a law firm.[11] After being elected to Congress in 1847, Lincoln found lodging in a small house across the street from the Library of Congress, and spent almost all of his free time in the Library studying the issues that he had to confront in office. Among the topics that Lincoln studied were Euclid’s geometry, with Lincoln saying that he “nearly mastered” all six volumes.[12] He continued to use the Library when he was elected President. Miller was highly impressed by Lincoln’s personal scholarship, stating, “It is not every president who would get books on military science from the Library of Congress, studying the subject in order to deal with the generals. Lincoln would develop rare powers of concentration, and he would use them all of his life. He developed a confidence that he could dig into books for what he wanted, and would do so repeatedly in the years ahead.”[13]

Miller found that Lincoln was not just unique in going to the library to gain the knowledge he needed to get ahead in the world, but also that young Abraham’s moral sense appeared to be unique compared to those around him. Miller enumerated Lincoln’s moral distinctiveness by observing that:

In a society of hunters, Lincoln did not hunt; where many males shot rifles, Lincoln did not shoot; among fishermen, Lincoln did not fish; among many who were cruel to animals, Lincoln was kind… in a world in which men smoked and chewed, Lincoln never used tobacco; in a rough, profane world, Lincoln did not swear; in a social world in which fighting was regular male activity, Lincoln became a peacemaker; in a hard-drinking society, Lincoln did not drink; when a temperance movement condemned all drinking, Lincoln the nondrinker did not join it; in an environment soaked with hostility to Indians, Lincoln resisted it; in a time and a place which the great mass of common men in the West supported Andrew Jackson, Lincoln supported Henry Clay; surrounded by Democrats, Lincoln became a Whig; in a political party with a strong nativist undercurrent, Lincoln rejected that prejudice; in a southern-flavored setting soft on slavery, Lincoln always opposed it; in a white world with strong racial antipathies, Lincoln was generous to blacks.[14]

Miller challenged the notion that the President was “a ‘white supremacist’ and even… a racist.”[15] Miller spent a page of his short preface, as well as a full chapter in the main text, to defend Lincoln’s reputation from allegations of this type.[16] According to Eric Foner[17], Miller was writing in response to Lerone Bennett, who denigrated Lincoln as total racist with little to no true moral vision.[18] Miller referenced Bennett in a footnote in his chapter where he defended Lincoln, but only mentioned that Bennett’s selection of Alexander Trumbull as a heroic non-racist foil against Lincoln was both bizarre and incorrect.[19] In order to defend Lincoln from the charges of racist and white supremacist, Miller had to first attempt to explain Lincoln’s statements during his U.S. Senate campaign against Stephen Douglas where Lincoln unequivocally stated that he was not in favor of “social and political equality” for African-Americans.[20] Miller explained and defended Lincoln in three ways. First, Miller pointed out that Lincoln’s critics of today who accuse him of gross racism are engaging in “presentism,” that is, not recognizing that Lincoln was a “man of his time,” a time where most if not all white men were in fact racists.[21] Second, Miller pointed to the fact that Lincoln was not monolithic, but instead that his ethics and morals continued to grow as he experienced life and learned new lessons.[22] Finally, Miller emphasized that Lincoln was in fact a politician, and that as a politician, he was bound to agree with some racial generalization or else he would be made unelectable. However, Miller argued that by agreeing with some of the standard racial generalizations of his time during political debate, Lincoln was then was able to create space that allowed him to argue against other generalizations. For example, by arguing against political and social inequality for African-Americans, Miller saw that Lincoln was able to then create space to contend that blacks were at least entitled to the same natural rights as whites, as found in the Declaration of Independence. Arguments such as these served to set Lincoln apart as more morally advanced than his white male peers that surrounded him.[23] In this way, just as Lincoln the politician was ethically unique with regards to alcohol, tobacco, and cursing, so too was he in his actual attitudes toward black Americans.

Part II of this post can be found here.

Notes

[1] For more on how religion has been often ignored in American history, and specifically how the interplay of religion and war has been almost completely overlooked by scholars, see Harry S. Stout, “Religion, War, and the Meaning of America”, Religion and American Culture: A Journal of Interpretation 19, no. 2 (Summer 2009): 275-89.

[2] (New York: Vintage Books, 2003).

[3] (New York: Penguin Books, 2007).

[4] (New York: Oxford University Press, 1988).

[5] (Lexington: University Press of Kentucky, 2007).

[6] (Louisville: University Press of Kentucky, 2010).

[7] For Miller’s description of himself as an ethicist and not a historian, see William Lee Miller, interviewed by Brian Lamb, June 14, 1992, Booknotes, CSPAN, Washington, DC. For Miller’s educational background, see Margalit Fox, “William Lee Miller, Scholar on Abraham Lincoln, Is Dead at 86,” New York Times, June 5, 2012.

[8] Miller, xii.

[9] Ibid, xiii.

[10] Ibid, 31.

[11] Ibid, 130.

[12] Ibid, 52.

[13] Ibid, 53.

[14] Ibid, 43.

[15] Ibid, xiii-xiv.

[16] See Miller’s chapter, “Lincoln’s Defense of Our Common Humanity”, 340-374.

[17] Eric Foner, “The Education of Abraham Lincoln,” review of Lincoln’s Virtues, by William Lee Miller, New York Times, February 10, 2002, 1, accessed March 23, 2015, http://www.nytimes.com/2002/02/10/books/review/10FONER.html.

[18] Forced into Glory: Abraham Lincoln’s White Dream (Chicago: Johnson Pub. Co., 2000), 1.

[19] Miller, 362-3n*.

[20] Ibid, 354.

[21] Ibid, 355.

[22] Ibid, xiv-xvi.

[23] Ibid, 353-363.

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