[Lincoln on Trial: Southern Civilians and the Law of War by Burrus M. Carnahan (University Press of Kentucky, 2010). Cloth, notes, bibliography, index. Pages main/total: 128/165. ISBN: 978-0-8131-2569-5 $30]
Evidence based examination of the treatment of southern civilians by U.S. military authorities during the Civil War can lead sober minds to hold widely divergent opinions about issues of legality and necessity. Where Burrus M. Carnahan, the author of the recent study Lincoln on Trial: Southern Civilians and the Law of War, stands on this controversial topic is clear. From his conclusion (Pg. 119), "Under the standards of the time, President Lincoln did not authorize or condone any violations of the [international] laws of war against enemy civilians." How this generalization is supported forms the essence of the book.
A short study, Lincoln on Trial skillfully employs an economy rarely encountered in scholarly Civil War books attempting to tackle weighty social, military, and political topics. There are five chapters, each exploring a distinct theme. The first deals with the application of international law to the conduct of the Civil War, while succeeding sections cover the seizure and destruction of private property, retaliation and guerrilla warfare, the concept of command responsibility for "devastation", and personal injury to civilians (most specifically, bombardment of cities). In all, the author finds the Lincoln administration in compliance with international law, as recognized at the time. As for the issue of "command responsibility", Currahan notes that holding individual commanders responsible for the unlawful actions of their men is a post-Civil War legal concept. Thus, he feels there is justification for the president's reinstatement to command men like John Basil Turchin (see the Sack of Athens).
However, a downside of a brief synthetic study such as this one is the limited space in which to develop an argument and the reliance on only a few (and sometimes a single) secondary source for background information and examples. Brevity also does not allow a truly sufficient elaboration on just what specific issues and precedents of international law the author is applying to the Civil War. Additionally, the Lieber Code is often cited in the literature without enough regard to the possibility of it being essentially a self-serving document, something that facilitates the objectives of the authorial belligerent while at the same time denying the legality of the means by which the other side can effectually resist. Only brief extracts from the Lieber Code are able to be reproduced in Currahan's text, and these are sufficiently vague in their language (e.g. just what constitutes "military necessity") as to invite a broad range of interpretation. A full length scholarly study of the Lieber Code and its application is long overdue in the published literature and would be very welcome to Civil War students.
A dominant theme throughout is President Lincoln's aversion to acts of revenge and his willingness to intervene and correct specific cases of injustice brought to his attention by others. However, his consistent unwillingness to use his power as chief executive to make sure such things did not recur (e.g. by issuing general orders against them or new, amended, or restated policy statements) is acknowledged by the author to be quite troubling. Carnahan does relate a multitude of possible justifications (some quite reasonable) behind this pattern of administrative behavior, but his ultimate acceptance of them will likely not resonate with all readers.
An important point raised in Lincoln on Trial is just what legal framework should have been applied to the treatment of southern civilians -- international law or the more protective Constitution. This issue becomes even more cloudy when dealing with civilians living in border states like Kentucky that did not secede. Carnahan admits that Lincoln often tried to have it both ways, but is little vexed by the idea.
Whether one finds Carnahan's conclusions ultimately persuasive or not, he has raised and framed for debate issues that are worthy of further inquiry. Although Lincoln on Trial sometimes reads more like legal advocacy than objective historical methodology (perhaps not surprising given the author's background as an Air Force JAG officer and law school lecturer), its arguments are nevertheless clearly presented and defensible.