Chapter 9
The law of war imposes many limitations and restrictions on principles of justice, faith and honor.
—Instructions for the Government of Armies of the United States in the Field, 1863
War is simply power unrestrained. . . .
—William Tecumseh Sherman, 1864
IN A WAR FILLED with controversies, none is remembered more bitterly than William Tecumseh Sherman’s assault on Atlanta in the summer of 1864.
Since early May, Sherman and his army of 100,000 men had been engaged in an elaborate series of feints and parries with Confederate general Joseph E. Johnston’s 65,000 soldiers. Moving south from Chattanooga across the Georgia border and into the heartland of the South, Sherman aimed to take Atlanta and its railroads and thereby destroy the economic foundations of the Confederacy. Johnston tried to block the Union force at every turn. But time and again, the southerners dug in only to fall back once more. Desperate to stop the Union advance, Jefferson Davis replaced Johnston with the more aggressive John Bell Hood. Yet Hood’s attacks did little to stop Sherman’s progress. Now, on July 20, as Hood fell back to positions on the outskirts of the city, Sherman ordered his commanders to cut off Atlanta’s railroads and shell the city into submission.
For the next five weeks, Union guns pounded the city blocks that lay just beyond Hood’s entrenchments. On August 9 alone, 5,000 rounds fell in Atlanta. Sherman called in heavier siege guns the very next day. Sherman marveled at the capacity of his fantastic modern guns to single out particular homes from a mile away, but the Union fire was often indiscriminate anyway. He urged his commanders to concentrate their fire at night (one Union shell killed a father and his daughter while they slept). His aim, he told Major General Oliver Otis Howard, was to “destroy Atlanta and make it a desolation.” Writing to Henry Halleck in Washington, Sherman said he would “make the inside of Atlanta too hot to be endured.” Whether he took Atlanta or not, Sherman aimed to leave the city all “used-up” by the time he was done.
The Union onslaught damaged virtually every structure in the city’s most densely built district. Casualties were relatively low thanks to the evacuation of three quarters of the city’s population; by the best count, the Union barrage killed around 20 noncombatantsand wounded between 100 and 200 more. But Sherman could claim no credit for the low number of injuries. He announced that he would go forward with his assault “even if it result in sinking a million of lives and desolating the whole land,” and ordered his artillery officers to give “no consideration” to whether their targets were “occupied by families.” His guns, he told an Alabama man at the time, were “seeking the lives” of Atlanta’s people.
Sherman later accused Hood of digging in so close to the city that Union guns aimed at the Confederate lines occasionally overshot their mark. But the sheer volume of rounds that fell on Atlanta belied his claim. And when Atlanta finally fell into Union hands in the first days of September, Sherman moved to complete his assault by ordering the remaining 4,000 residents removed from the town by force. The Union sympathizers he sent north. Rebel families he expelled south to the protection of Hood’s forces. He would not saddle himself with a city full of rebels. “If the people raise a howl against my barbarity & cruelty,” he wrote to Halleck, “I will answer that War is War & not popularity seeking. If they want Peace, they & their relations must stop War.”
Sherman’s opponents did indeed howl. General Hood protested “in the name of God and humanity” that forced removal of the city’s population was an “unprecedented measure,” transcending “all acts ever before brought to my attention in the dark history of the war.” The mayor of Atlanta, James M. Calhoun, begged Sherman to think of “the woe, the horrors, and the suffering” his evacuation order would cause to the pregnant women, the mothers, and the small children of the city.
But Sherman would have none of it. It was an act of “kindness” to remove the families of Atlanta, he insisted. “You cannot qualify war in harsher terms than I will,” he warned Mayor Calhoun. But once begun, war’s logic was inexorable. “War is cruelty and you cannot refine it, and those who brought war into our country deserve all the curses and maledictions a people can pour out.” “If we must be enemies,” he told Hood, “let us be men, and fight it out as we propose to do, and not deal in such hypocritical appeals to God and humanity.” God, Sherman concluded, would “judge us in due time,” and God would decide “whether it be more humane to fight with a town full of women and the families of a brave people at our back, or to remove them” to safety. To Hood’s condemnation of his bombardment of Atlanta, Sherman replied furiously: “I was not bound by the laws of war to give notice of the shelling of Atlanta, a ‘fortified town with magazines, arsenals, foundries, and public stores.’ You were bound to take notice. See the books.”
IN THE TWENTIETH and twenty-first centuries, Sherman’s conduct at Atlanta and in the March to the Sea that followed have come to represent the beginnings of modern total warfare and proof that the laws of war cannot constrain the machinery of industrialized warfare. Surely, the critics say, Sherman’s conduct shows that the code Lincoln issued in 1863 made no difference to how the Union waged the war. General Orders No. 100 contained terms bearing directly on Sherman’s conduct, but there is no evidence that he consulted them. To leading historians, the law of war has seemed little more than a “moral cloak” for the Union’s conduct in the last two years of the conflict.
But the skeptics miss the real story. The laws of war and the order that codified them powerfully shaped the war experience of tens of thousands of people on both sides of the conflict. Sherman’s assault on Atlanta, in turn, was not a betrayal of the law of war. It was the practical embodiment of the code’s unsettling critique of the orthodox laws of war.
THE FIRST PRACTICAL thing the newly codified laws of war accomplished was to make Major General Ethan Allen Hitchcock’s life much harder.
Hitchcock, who oversaw the writing of the 1863 code as president of the board of advisers appointed to assist Lieber, was one of the great crusty characters of the war. Born into the family of Vermont War hero Ethan Allen, Hitchcock graduated from West Point in 1817, and returned to the Military Academy as an instructor in infantry tactics. For a decade, he taught the men who would one day become the Civil War’s leading generals. On the Union side, his students included Sherman, Joseph Hooker, George Gordon Meade, Samuel Curtis, Samuel Heintzelman, and John Sedgwick. On the Confederate side, he taught Joseph Johnston, Robert E. Lee, John Magruder, Jubal Early, and Leonidas Polk, not to mention Jefferson Davis himself. Hitchcock was on his way to becoming one of the academy’s legendary instructors. But when President Andrew Jackson began to meddle in the academy’s affairs, the uncompromising Hitchcock soon got into political trouble. Jackson exiled him to the Indian-fighting posts of the frontier.
In the West, Hitchcock came to regard American military policy toward the Indians as a moral abomination. The U.S. policy, he wrote, was “a picture of cruelty, injustice, and horror.” Serving in the interminable Seminole Wars in Florida in the 1840s, he concluded that bad faith on the part of the United States was responsible for the conflict. Americans typically treated the Indians, he said, “as white men on this continent have always treated them”: as “barbarians and ‘insurgents,’” especially when the Indians “presumed to set up a claim to anything” the white men wanted. The “Puritans and their descendants,” Hitchcock decided, were as savage as the Pequots and theirs.
Hitchcock was not only a man of unusual principle, he was also an intellectual eccentric of the first order. In the early 1840s, while stationed on the Gulf Coast in Tampa, he read the political tracts of Thomas Hobbes and John Locke and pored over the metaphysics of Kant and Hegel. On the western frontier he turned to histories: Napier’s history of Napoleon’s Peninsular Campaign, the Roman history written by the great Prussian historian Barthold Georg Niebuhr (an old mentor of Francis Lieber), and Thomas Babington Macaulay’s History of England. While fighting Indians he found spare moments to delve into Jeremy Bentham’s works on utilitarianism. In Texas and Mexico, he read the seventeenth-century Dutch-Jewish philosopher Baruch Spinoza. Indeed, in the 1840s, Hitchcock published a philosophical tract of his own, one that purported to unify the doctrines of Spinoza with those of the Christian mystic Emanuel Swedenborg. After resigning from the Army in 1855, Hitchcock published a stream of additional works, each one more esoteric than the last. Remarks Upon Alchemy and Alchemists (1857) featured his account of the religious mysticism that lay behind alchemy’s dream of transfiguring lead into gold. In 1861, just as the guns were firing on Fort Sumter, Hitchcock’s abstruse Christ the Spirit argued controversially that Jesus had not existed at all except in the imagination of ancient Jewish mystics.
At the age of sixty-four, in the second year of the Civil War, Hitchcock rejoined the Army as a major general serving on Secretary Stanton’s staff. In the summer, he inspected Union prisoner of war camps. In November, Stanton appointed him commissioner for the exchange of prisoners. A month later, he was added to the board of advisers tasked with helping Francis Lieber prepare a code of regulations for the laws of war.
HITCHCOCK WAS AMONG the first to realize there was a serious flaw in the code he had helped produce. Since July 1862, an agreement negotiated by John Dix for the Union and Daniel Harvey Hill for the Confederacy had produced a regular system of prisoner exchanges. But by early 1863, the exchange cartel had begun to break down. The South was increasingly desperate to restore men to its depleted lines. After the major engagements in 1862 at Bull Run, Antietam, and Fredericksburg, the Union held 10,000 more prisoners than the Confederacy. In the Union, meanwhile, acute problems were arising out of the South’s practice of paroling captured Union soldiers pending their exchange. Northern camps established to house idled Union soldiers on parole turned into breeding grounds for disease, discontent, and crime. Some paroled prisoners never bothered to report to the camps but went home instead; they were scattered around the country and often unavailable for a return to service after they had officially been exchanged. The parole of thousands of captured Union soldiers at Harper’s Ferry and Richmond in the fall of 1862 exacerbated an already deteriorating situation.
Hitchcock responded by trying to end the Confederate practice of mass battlefield paroles. As commissioner for exchanges, he took the position that battlefield paroles were of no legal effect because the terms of the Dix-Hill exchange cartel required that paroled Union soldiers be sent through officers of exchange at Dutch Gap in Virginia or at Vicksburg in the West. Only then could a parole be binding. Noncompliant paroles, Hitchcock contended, were like escapes: they simply released a prisoner to serve in the lines again.
Francis Lieber’s project aimed to bolster the Union position on paroles by adding a second objection to battlefield paroles. The code asserted that as a matter of international law no soldier could trade away his obligation to serve his country. Release on parole was “not a private act.” Paroles were only valid if consented to by the commanding officer in the field and the parolee’s government. Article 131 provided that “if the government does not approve of the parole, the paroled officer must return into captivity.”
There was the mistake: “must return into captivity.” The intended Union position was the one that Hitchcock had announced the previous winter: that invalid paroles were the functional equivalent of escapes and that prisoners discharged on an invalid parole were eligible to return to Union lines immediately. But that’s not what Article 131 said. The Union’s own statement of the laws of war now required its illegally paroled men to report to the South to be duly imprisoned as prisoners of war.
Lieber’s code was a blank check for Confederate forces to issue wholesale paroles to captured Union soldiers at no cost to themselves. Confederate secretary of war James Seddon initially protested the code’s limits on paroles. (The Confederacy’s battlefield paroles had spared Seddon the considerable cost of prisoner upkeep and transportation.) But as the significance of Article 131’s error became clear, the Confederacy quickly shifted its position. Moving into the North in June 1863, Robert E. Lee’s Army of Northern Virginia captured Union soldiers by the thousands and simply turned them loose on an oath not to serve again until exchanged, keeping long lists of the men who had so sworn. Southern commanders like Jubal Early freely disregarded the rules for proper paroling practice set out in the 1862 cartel and the 1863 code, confident that doing so would free southern armies of the onerous work of escorting prisoners back into the South.
Stanton and Halleck scrambled to rectify the error. On July 3, while the year’s two most important battles raged at Gettysburg in the east and Vicksburg in the west, Stanton rushed out an order announcing that henceforth paroles not complying with the code and the Dix-Hill cartel were to be regarded as “null and void.” Halleck instructed Hitchcock to take the position that General Orders No. 100 had not superseded the 1862 cartel. But the Confederate agent of exchange Robert Ould would have no part of Halleck’s dodge.Ould gleefully proposed that paroles be respected according to the position of the Union’s own orders—orders that required the Union either to recognize the paroles of the Gettysburg campaign or to deliver the discharged Union soldiers back to their Confederate captors.
BY AUGUST 1863, prisoner exchanges had broken down irretrievably for reasons much more grave than Lieber’s careless mistake.
The long-term threat to prisoner exchange was the South’s refusal to treat black soldiers and their white officers as eligible for exchange under the 1862 cartel. Jefferson Davis and the Confederate Congress continued to treat them as fugitive slaves, insurrectionists, and criminals, not as soldiers. In the spring, two free black boys captured while accompanying a Union regiment from Massachusetts were sold into slavery by Texas officials. In August, Secretary of War Seddon ordered General Kirby Smith to execute white officers of colored regiments “red handed on the field or immediately thereafter”; blacks in arms, he told Smith, were to be viewed as “deluded victims” of Union hypocrisy and handed over to state officials. State governors across the South put in place procedures for re-enslaving blacks taken in arms. Newspapers listed the names of blacks captured in battle and called on owners to reclaim those whom they believed belonged to them. Unclaimed prisoners were sold into slavery for the benefit of state coffers.
Some Confederate officers simply executed black soldiers on the spot. When the first black soldiers were captured in November 1862, Seddon had recommended summary execution to Jefferson Davis, and the idea never entirely went away. Kirby Smith instructed Confederate officers west of the Mississippi to give “no quarter” to both “negroes and their officers captured in arms.” Entire detachments of captured black soldiers were killed on the pretext that they had attempted to escape. Officially, the Confederate War Department discouraged such practices, at least with regard to black soldiers themselves, whom they viewed as the dupes of a wicked northern scheme. But officials such as Robert Ould, the agent of exchange in Richmond, also knew that if done quietly enough, summary executions would reduce the tensions that Confederate policy had produced in the exchange system by keeping the number of black prisoners to a minimum. When one cavalry officer reported to his superiors that he had assisted in executions with his own revolver, the Confederate command decided simply that it was not in “the interest of the service” to investigate the matter further.
Harper’s Weekly depicted Confederate soldiers shooting captured black Union teamsters in May 1864.
It was hard to keep such executions quiet. Summary executions culminated in bloody massacres at places like Saltville, Virginia, where Confederate guerrilla Champ Ferguson and his men executed dozens of blacks in October 1864. At Mark’s Mill, Arkansas, one Confederate veteran later remembered that “no orders, threats, or commands could restrain the men from vengeance on the negroes” they had captured. At nearby Poison Springs, Union colonel James Williams reported that the wounded men of the 1st Kansas Volunteers were “murdered on the spot” when they fell into Confederate hands.
The most notorious race massacre took place when Major General Nathan Bedford Forrest’s cavalry assaulted the Union garrison at Fort Pillow in Tennessee in April 1864. Of the 600 Union men guarding the fort, about half were black soldiers. Most had been slaves until very recently, and many of them had lived in the vicinity of Fort Pillow. Some were even well known to members of Forrest’s forces. When Forrest overran the Union positions, his men allowed white Union soldiers to surrender. But as a Confederate newspaper correspondent reported, “the negroes were shown no mercy.” A sergeant in Forrest’s cavalry told his wife that words could not “describe the scene” that followed. The “poor deluded negroes,” he wrote shortly after the event, “would run up to our men fall upon their knees and with uplifted arms scream for mercy,” only to be “ordered to their feet and then shot down.” Two-thirds of the 300 black soldiers who were in the fort that morning were dead by nightfall. Forrest would later denyaccusations that he or his men had executed blacks. But the evidence shows (and most historians now agree) that they did. Indeed, the Fort Pillow executions were not so much surprising as they were inevitable. They were simply the logical outcome of the South’s official denial that blacks could be lawful soldiers. Forrest, who founded the Ku Klux Klan shortly after the war’s end, treated black Union soldiers at Fort Pillow as he would have treated slaves in an armed insurrection before the war. They were criminals for whom the laws of war had nothing to say.
IN THE SUMMER of 1863, Lincoln, Stanton, Halleck, and Hitchcock decided the Union would not take part in any system of exchange so long as the South persisted in its treatment of black soldiers as criminals.
Two hundred black soldiers died in the grisly massacre at Fort Pillow.
It was an extraordinarily unpopular policy. Many northern whites could hardly believe that the Lincoln administration would put black soldiers ahead of white ones. White soldiers in the southern camps petitioned angrily for a change in policy, observing caustically that the southern policy on black soldiers sometimes worked out to the benefit of captured blacks, who were “seldom imprisoned” but put to work and fed and clothed in order to maintain their strength. White soldiers complained that they were “starved and treated with a barbarism unknown to civilized nations,” while black soldiers were “neither starved, nor killed off by the pestilence in the dungeons of Richmond and Charleston.” The editors of the New York Times demanded resumption of prisoner exchanges lest “ten or twelve thousand of our soldiers be starved to death.” Walt Whitman took to the newspapers to decry Secretary Stanton for turning thousands of white soldiers into hostages for the benefit of a few black men. Responsibility for their deaths, Whitman angrily asserted, would “rest mainly upon the heads of members of our own Government.”
The Union’s newly codified account of the laws of war played a vital role in the controversy. With a clarity that appeared nowhere else in the law of nations, the code’s terms denied that a nation at war could discriminate among enemy soldiers on the basis of their race. The crisp terms provided a script for Union officials for the rest of the war. Within weeks of the code’s publication, Union exchange agent William Ludlow drew on it to protest to his counterpart Robert Ould that under “the laws and usages of war” a capturing army was forbidden to withhold prisoner of war treatment on the basis of race. Halleck committed the United States to offering “protection to all persons duly received into the military service” and demanded that the Confederacy comply with this basic feature of the “rules of civilized war.” In the Department of the South, David Hunter insisted that exchanges stop until the South treated Union soldiers equally “irrespective of their color.” Near Vicksburg, Mississippi, Ulysses S. Grant announced that the U.S. government was “bound to give the same protection” to black troops “that they do any other troops.” Benjamin Butler, who became a special agent for the exchange of prisoners in December 1863, told Ould (at Hitchcock’s instruction) that it would be consistent with neither “the policy, dignity, nor honor of the United States” to allow those who had “borne arms in behalf of this country” to “remain unexchanged and in the service of those who claim them as masters.”
Hitchcock also relied on the code’s race discrimination provisions when he took the Union’s case to the unsympathetic northern public. Hitchcock had taken positions of principle many times in the course of his long and curious career, often to his own detriment. Now, in an open letter to the editor of the New York Times, he made one more stand. Union soldiers in the prison camps of the South, he conceded, were undergoing “extreme sufferings” that had “naturally aroused the sympathies of our people.” Why then had they not been exchanged? The answer, Hitchcock explained, was that in employing black troops, the United States had incurred a “most solemn obligation” to protect all of its soldiers and ensure that they were “treated with that humanity which is due to all other troops in like circumstances according to the laws of civilized warfare.”
SKEPTICS DOUBTED HITCHCOCK’S sincerity in 1863 and have continued to doubt it ever since. The skeptics argue that protecting black soldiers was merely a pretext for the real reason the Union discontinued exchange: promoting its strategic interests. As the critics observe, Union leaders such as Stanton had come to think that exchanging all the Union’s southern prisoners would hand the Confederacy “a new army 40,000 strong” while getting little in return for the North. The arithmetic of prisoner exchange had often worked against the Continental Army in the War of Independence. Now exchanges seemed likely to work against the Union. Prisoners held by the Confederacy were often too weak to be returned to the front lines. Many Union soldiers’ three-year enlistments would expire in the summer campaign season anyway.
Yet the treatment of black soldiers was no mere excuse for self-interested Union tactics. As far back as December 1862—long before conditions in southern prisons raised political pressure on the exchange question—Lieber, Hitchcock, and Halleck had made the equal treatment of black soldiers a central feature of their project to codify laws of war. While the code was still in the drafting stage in January 1863, Stanton told the governor of Massachusetts that “the United States was prepared to guarantee and defend, to the last dollar and the last man . . . all the rights, privileges and immunities that are given, by the laws of civilized warfare.” And in their private correspondence, Union officials expressed the same position. Early in the fall of 1863, weeks before he wrote his public letter to the Times, Hitchcock told Lieber that “if the government employs colored soldiers, their officers (& themselves also) must be protected according to the laws of war.”
Justifying an otherwise unpopular policy by appealing to the equality of black and white soldiers would have been a singularly poor political tactic. Popular reaction to the Union policy was so hostile that Hitchcock offered his resignation within days of the publication of his open letter. (Stanton declined to accept it, and Hitchcock served to the end of the war.) The policy of refusing discriminatory rebel exchange offers became more controversial with every passing month. Even Secretary of the Navy Gideon Welles believed that stopping the exchanges because southern slaveowners “held on to their slaves” when they were captured “was an atrocious wrong.” Prisoners moldering at the prison camp at Andersonville, Georgia, were positively venomous toward a policy that resulted in the deaths of hundreds of their white comrades, sometimes at a rate of more than 100 each day. “The Everlasting Nigger must be protected,” seethed a Massachusetts prisoner, “and the soldier may take care of himself.” A Vermont sergeant complained that “we must stay here because they can’t agree on some nigger question.” A New Yorker wrote that he had “no desire to be immolated upon the altar of the ‘irrepressible nigger.’” William Farrand Keys, a schoolteacher from Pennsylvania, bitterly expressed what many in the camps thought: “it appears that the federal government thinks more of a few hundred niggers than of the thirty thousand whites here in bondage.” If refusal to resume the exchange cartel was not actually based on the South’s refusal to treat black Union men as soldiers, the administration had chosen a singularly bad public justification for its policy.
The Union position on prisoner exchanges was not based solely on principle, of course. It had strategic implications as well, though not only the ones the critics typically cite. White men available for army service had grown scarcer in 1863. As the Union turned to unpopular measures such as the draft, the availability of black soldiers became an increasingly critical part of the Union war strategy. Almost 200,000 would serve in arms by the war’s end. By the summer of 1863, however, free blacks such as Frederick Douglass had made clear that if the Lincoln administration wanted to recruit black soldiers into its armed forces, it would have to insist on prisoner of war treatment for black soldiers. A black man from New York named Theodore Hodgkins put it bluntly: If the government did not protect its black soldiers, he wrote to the president, “it may as well disband all its colored troops, for no soldiers whom the government will not protect can be depended upon.” In the war’s waning weeks, when black recruitment was no longer as urgent a concern, Grant agreed to resume exchanges without insisting on a policy of nondiscrimination.
The greatest problem of all for the skeptics is that, as Hitchcock reminded Stanton after the war was over, all the Confederacy had to do to resume prisoner exchanges was agree to exchange black soldiers man for man alongside whites. The Union offered precisely these terms repeatedly in 1863 and 1864. Grant himself offered to enter into such an exchange with Lee in October 1864. But each time, the South refused to take up the Union’s offer. Ould told a Union exchange officer that southerners would “die in the last ditch” before they agreed to treat blacks as soldiers. Even many captured Confederate soldiers opposed any agreement to exchange black soldiers, despite the fact that such an arrangement would have sped their release. One Alabama man, captured at Chattanooga in November, speculated in his diary that the Union had enlisted blacks for the very purpose of stopping prisoner exchanges. “They well know,” he observed, “we can never treat our slaves as prisoners of war.” No wonder, then, that in their private correspondence, Ould and Seddon characterized the Union’s insistence that former slaves in Union uniforms be treated as prisoners of war as “the chief” and “insurmountable” obstacle to the restoration of the exchange system.
Exchanges resumed in the last weeks of the war; artist Alfred Waud sketched recently exchanged Union soldiers receiving new clothes in December 1864.
IN THE CONTROVERSY over prisoner exchanges and black soldiers, the laws of war did not oblige the United States to take the stand it did. The code Lieber drafted in 1863 asserted only that the South could not discriminate among regular Union soldiers without facing the risk of Union reprisals. It was up to the Union to decide whether to insist on prisoner of war treatment for its soldiers. What the laws of war did was to offer support for the unpopular policy of refusing to enter into discriminatory prisoner exchanges. The code, in short, helped the Lincoln administration stand its ground.
Therein lies a startling paradox for the beginnings of the modern laws of war. For by insisting on nondiscrimination, Lincoln’s code had a hand in the greatest humanitarian disaster of the last two years of the war. Some 55,000 men died in Civil War prison camps. Had exchanges been allowed to go forward on the South’s terms, countless of those men would have lived. If the law of war’s only goal were reducing human suffering, this would have been a searing indictment of its legacy. But the Union’s code embodied a mix of purposes. Lessening humanitarian suffering was one. But so was justice for black soldiers and victory for the Union.