Were Confederate soldiers tried for treason? (It’s complicated…)

Claude Bauer

First Sergeant
Forum Host
Joined
Jan 8, 2012
This interesting article on Duke University's Lawfire site addresses some of the most complex and controversial legal aspects of the war: the post-war status of those who served in the Confederate government and military, the definition of treason, and the legal impact of pardons and paroles. It also links to other articles on these topics. There's a lot to digest, and as the article points out, like many things about the Civil War, it's complicated...

https://sites.duke.edu/lawfire/2020...Ao-ZVkfF-BeXhn1IhtZax98xmgXRcTxpGXLfPbv7z7mBk

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Most Confederate soldiers except some senior command officers, were not charged with treason due to the international laws of war and the belligerent status conferred upon both sides during the Civil War. The status as a belligerent separated the reason for going to war from the conduct of the war and forced protections on the common soldier of the rebellious group as if they were legitimate soldiers from a recognized state. Had belligerent status not been granted to the Confederate States then the rebellion would have been handled as a law enforcement operation where Confederate soldiers could be charged individually with murder, treason and a host of other federal and state crimes.

Vattel wrote that rebellions and civil wars were different than wars between sovereign nations in that if the rebellion is unsuccessful, its leaders are not exempt from criminal prosecution:

"At length it became necessary to relinquish those pretensions to judicial authority over men who proved themselves capable of supporting their cause by force of arms, and to treat them, not as criminals but as enemies. Even the troops have often refused to serve in a war wherein the prince exposed them to cruel reprisals. Officers who had the highest sense of honour, though ready to shed their blood in the field of battle for his service, have not thought it any part of their duty to run the hazard of an ignominious death. Whenever, therefore, a numerous body of men think they have a right to resist the sovereign, and feel themselves in a condition to appeal to the sword, the war ought to be carried on by the contending parties in the same manner as by two different nations: and they ought to leave open the same means for preventing its being carried to outrageous extremities, and for the restoration of peace.
"When the sovereign has subdued the opposite party, and reduced them to submit and sue for peace, he may except from the amnesty the authors of the disturbances, — the heads of the party: he may bring them to a legal trial, and punish them, if they be found guilty."
The Law of Nations or the Principles of Natural Law, Emmerich de Vattel, Book III, Chapter XVIII


The United States Supreme Court as well as the Lieber Code also recognized the protections that belligerent status bestowed on the common rebel soldier:

"A war may exist where one of the belligerents claims sovereign rights as against the other. Insurrection against a
government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government. A civil war is never solemnly declared; it becomes such by its accidents—the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason. The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars. 'A civil war,' says Vattel, breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms. This being the case, it is very evident that the common laws of war–those maxims of humanity, moderation, and honor—ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &c., &c.; the war will become cruel, horrible, and every day more destructive to the nation. As a civil war is never publicly proclaimed, eo nomine, against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know."
Excerpt from Justice Grier's written majority opinion in the Prize Cases


Lieber Code:
Art. 153.
Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agreements with them; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce; or, on the other hand, proclaiming Martial Law in their territory, or levying war-taxes or forced loans, or doing any other act sanctioned or demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes an acknowledgment of the rebellious people, or of the government which they may have erected, as a public or sovereign power. Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits of these rules. It is victory in the field that ends the strife and settles the future relations between the contending parties.

Art. 154.
Treating, in the field, the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty.
 
This interesting article on Duke University's Lawfire site addresses some of the most complex and controversial legal aspects of the war: the post-war status of those who served in the Confederate government and military, the definition of treason, and the legal impact of pardons and paroles. It also links to other articles on these topics. There's a lot to digest, and as the article points out, like many things about the Civil War, it's complicated...

https://sites.duke.edu/lawfire/2020...Ao-ZVkfF-BeXhn1IhtZax98xmgXRcTxpGXLfPbv7z7mBk
Great article -- thanks for posting it. I read Secession on Trial a few years ago and found most of it fascinating.
 
Joined
Mar 15, 2018
The confederate soldiers were guilty of defending their homes and their families and their respective states against the onslaught of a hostile military invasion, but that was the full extent of their “guilt,” and had the fortunes of war turned out differently it would have been the union army that would have been placed on the docket.
 

thomas aagaard

1st Lieutenant
Joined
Nov 19, 2013
Location
Denmark
The confederate soldiers were guilty of defending their homes and their families and their respective states against the onslaught of a hostile military invasion,
Well, guess you also think Japan was the victims in 1941... when they attack Pearl Harbor.
It was the CSA that turned a political crisis into all out war by bombarding a US fort on US soil.


That said, I agree that the ordinary csa soldiers generally just did their duty to the political authorities in control of their homes.
And it was morally the right decision not to charge them.
 

BuckeyeWarrior

Sergeant
Joined
Jan 1, 2020
Location
Ohio
Lincoln's "let them up easy" philosophy was one of his two biggest mistakes. (The other being picking Johnson as his Vice President). After the war all high ranking rebels, both military and civilian, should have been hung by the neck until dead. Starting with Davis and Lee.
 

Claude Bauer

First Sergeant
Forum Host
Joined
Jan 8, 2012
Lincoln's "let them up easy" philosophy was one of his two biggest mistakes. (The other being picking Johnson as his Vice President). After the war all high ranking rebels, both military and civilian, should have been hung by the neck until dead. Starting with Davis and Lee.
A lot of people felt that way at the time, and apparently many still do.
 

unionblue

Brev. Brig. Gen'l
Member of the Year
Joined
Feb 20, 2005
Location
Ocala, FL (as of December, 2015).
Lincoln's "let them up easy" philosophy was one of his two biggest mistakes. (The other being picking Johnson as his Vice President). After the war all high ranking rebels, both military and civilian, should have been hung by the neck until dead. Starting with Davis and Lee.
A lot of people felt that way at the time, and apparently many still do.
There are a lot of people, myself included, that feel the Union won the war and the Confederacy won the peace.
 

uaskme

2nd Lieutenant
Joined
Nov 9, 2016
Location
SE Tennessee
Lincoln's "let them up easy" philosophy was one of his two biggest mistakes. (The other being picking Johnson as his Vice President). After the war all high ranking rebels, both military and civilian, should have been hung by the neck until dead. Starting with Davis and Lee.
Study the history of all of that and it wasn’t a mistake Lincoln did what he did. There was Political and other justifications for it. Lincoln could not of prosecuted the War or of been re-elected in 64 without the war Democrats. Johnson was a war Democrat and was more Radical than Lincoln was. Radical Reconstruction didn’t turn out too well?

Unfortunately people’s biases still exist which excludes being able to separate their feeling from fact.
 

unionblue

Brev. Brig. Gen'l
Member of the Year
Joined
Feb 20, 2005
Location
Ocala, FL (as of December, 2015).
Study the history of all of that and it wasn’t a mistake Lincoln did what he did. There was Political and other justifications for it. Lincoln could not of prosecuted the War or of been re-elected in 64 without the war Democrats. Johnson was a war Democrat and was more Radical than Lincoln was. Radical Reconstruction didn’t turn out too well?

Unfortunately people’s biases still exist which excludes being able to separate their feeling from fact.
Again, it depends on a couple of unfortunate facts. Lincoln didn't have a chance to influence Reconstruction because he was murdered by a then present-day biases of one individual.

As for people's present-day biases, one has to check both ways before crossing that street.
 

Claude Bauer

First Sergeant
Forum Host
Joined
Jan 8, 2012
After the war, he referenced Washington as “the greatest man in the world.”
That he did. I believe that was in reference to Washington giving up command of the military and not taking over the country as a monarch, something apparently unthinkable to an European aristocrat. When told by the American artist Benjamin West that Washington was going to resign, King George III of England said, "If he does that, he will be the greatest man in the world."
 
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