Book Review: United States Military Justice in the Civil War: Court-Martial Procedures and Administration

United States Military Justice in the Civil War: Court-Martial Procedures and Administration. By R. Gregory Lande. North Carolina: McFarland. Softcover, 246 pp.  $39.95.

Reviewed by John B. Sinclair

Civil War readers occasionally come across references to Union officers or soldiers/sailors being subject to courts-martial. Those references are usually quite brief, leaving the reader to ponder the details of those proceedings. By its very title and author assertions, United States Military Justice in the Civil War: Court-Martial Practices and Administration by R. Gregory Lande claims to provide a “comprehensive” look at Union court-martial proceedings. (1 & 3) Lande would seem to be a good candidate to explore this area given his former U.S. Army military experience as a psychiatrist (including testimony in courts-martial) and previous Civil War books.[1] Does he succeed? Partially.

Lande uses an impressive database of 5,000 courts-martial involving Army, Navy, and Marine Corps officers and enlisted personnel. One-third involve officers, while two-thirds concern enlisted men. A combined total of 88.2 percent of the proceedings resulted in guilty verdicts, with differences between officers and enlisted men being separated only by a few percentage points. Lande provides a number of statistics in his Introduction and sprinkled through the narrative. His bibliography is solid.

Chapter One begins with a brief look at the history of military law and the tension between the need for military discipline and the rights of individuals. Lande then provides a very useful look at court-martial rules and regulations, although he describes it as an “elementary” examination and refers readers elsewhere for a “comprehensive education.” (3). Commanding officers would bring charges against the accused. A judge advocate would be named to act as prosecutor. Members of the court-martial were always officers. The accused had to the right to counsel, though that counsel’s participation was according to regulations limited. The Navy permitted civilian attorneys to participate. In a number of cases summarized in this book; however, it appeared that active participation by defense counsel was permitted during cross-examination, a point that needed clarification. Defense statements were permitted to be read into the record, which gave considerable leeway to the accused to argue his case. Convictions required a simple majority vote, while death-penalty cases needed a two-thirds vote. The verdicts could be reviewed and overruled by the convening authority, a more senior officer, or by the president. Noted figures such as George McClellan, Henry Halleck, Gideon Welles, David Porter, and even President Abraham Lincoln make brief appearances in these post-verdict reviews. One important oversight is the lack of discussion regarding rules of evidence – a critical and often deciding factor in trials.

Chapter Two deals with unauthorized absences ranging from desertion to overstaying passes. Bounty jumping was a significant problem, a topic Lande ably covers. Alcohol and varieties of unruly misconduct are the subject of Chapter Three. Chapter Four is a review of courts-martial over violent crimes ranging from murder and rape to lesser crimes such as soliciting prostitution. Finally, Chapter Five concludes the study with a focus on “subordinate” military crimes such as forgery, theft, malingering, and medical malfeasance. The narrative then suddenly ends without an epilogue or concluding chapter.

The various chapters on specific offenses consist mostly of a collection of cases summarized in as little as a paragraph to a few pages. With some exceptions, Lande mostly recaps the facts of the sometimes numerous cases in each chapter without a great deal of connective analysis, often leaving readers adrift to draw their own conclusions. Some chapters (3 and 4 in particular) contain too many unnecessary cases that could have been removed to tighten the narrative.

Most welcome is Lande’s analysis of Civil War rape literature, which concludes the crime was underreported due to the mores of the times, witness intimidation, requirements of physical evidence (e.g., cuts or bruises on the victim), and evidence of victim’s physical resistance. Racial disparities in the treatment of African-American victims and defendants are also noted. In this grim chapter, one case of some levity involves a Union major in the 59th N.Y regiment charged with conduct unbecoming an officer and gentleman for appearing in a Washington, D.C. theater with “two notorious harlots.” (176) Verdict? Dismissal from the Army.

Without a concluding chapter in this book, however, the reader is left to ask: So what does it all mean? Early in the book, Lande suggests an “uneven performance of military justice” during the Civil War (13), but does not fully develop this contention. For example, merely noting one guilty verdict in one desertion case and a not guilty verdict in another does not enlighten readers as the cases may be an apples-to-oranges comparison. Witness credibility and/or sympathy are often key. On the section involving medical malfeasance, I wondered whether the strain of handling battlefield horrors played into surgeons’ use of alcohol or psychological problems.

Though I would have preferred a more comprehensive analysis and set of conclusions, I still recommend this book to anyone interested in the subject.[2]

[1]   These books include Madness, Malingering, and Malfeasance: The Transformation of Psychiatry and the Law in the Civil War Era (Potomac, 2005); The Abraham Man: Madness, Malingering, and the Development of Medical Testimony (Algora, 2012); Psychological Consequences of the American Civil War (McFarland, 2017); and Spiritualism in the American Civil War (McFarland, 2020).

[2] In his bibliography, Lande cites six works authored or co-authored by the late Thomas P. Lowry, M.D. One of these books, Tarnished Eagles: The Courts-Martial of Fifty Union Colonels and Lieutenant Colonels (Stackpole, 1997) examines these select courts-martial under several categories of misconduct. The author also provides a useful epilogue summarizing his thoughts. I should point out that Dr. Lowry was accused of his own serious misconduct. The National Archives contended that he altered the date of a Lincoln pardon of a soldier from April 14, 1864 to April 14, 1865 (the day of his assassination). Dr. Lowry signed a written confession, but later claimed he do so under duress. Criminal charges were never brought due to the expiration of the statute of limitations, though Dr. Lowry was barred from the National Archives for the rest of his life (he died in 2023). Rein, Lisa and Burke, Jennifer, “Historian Accused of Altering Lincoln Document at National Archives.” Washington Post, January 25, 2011.

John B. Sinclair is a retired charitable foundation president and a retired attorney. He is a member of the Baltimore Civil War Roundtable, a member of the Sons of Union Veterans of the Civil War (James A. Garfield Camp No. 1), and a Life Member of the Lincoln Forum.