Retaliation Order (1863)

Summary

A year into the conflict, both the United States and the Confederacy were growing anxious to keep the ranks of their armies filled, and both resorted to mass conscription (the Confederacy in 1862, the U.S. in 1863). Part of the Federal strategy for recruitment included the amendment of the 1795 Militia Act and the Emancipation Proclamation’s provision, both aimed at the recruitment of black soldiers. Black soldiers of what was then known as the “United States Colored Troops” served in segregated regiments with white officers. However, the Confederacy, whenever it captured officers and men of the U.S.C.T., refused to recognize black soldiers as prisoners-of-war, and threatened to sell them into slavery; and by a joint resolution of the Confederate Congress on May 1, 1863, the white officers were deemed insurrectionists and threatened with execution. Lincoln issued a retaliatory order, citing the “law of nations” and promising equally harsh treatment for every Federal soldier thus mistreated.

Selected by

Allen C. Guelzo

Director, Initiative on Politics and Statesmanship, James Madison Program in American Ideals and Institutions, Princeton University

Darrell A.H. Miller

Melvin G. Shimm Professor of Law at Duke University School of Law

Document Excerpt

It is the duty of every government to give protection to its citizens, of whatever class, color, or condition, and especially to those who are duly organized as soldiers in the public service. The law of nations and the usages and customs of war as carried on by civilized powers, permit no distinction as to color in the treatment of prisoners of war as public enemies. To sell or enslave any captured person, on account of his color, and for no offence against the laws of war, is a relapse into barbarism and a crime against the civilization of the age.

The government of the United States will give the same protection to all its soldiers, and if the enemy shall sell or enslave anyone because of his color, the offense shall be punished by retaliation upon the enemy’s prisoners in our possession.

It is therefore ordered that for every soldier of the United States killed in violation of the laws of war, a rebel soldier shall be executed; and for every one enslaved by the enemy or sold into slavery, a rebel soldier shall be placed at hard labor on the public works and continued at such labor until the other shall be released and receive the treatment due to a prisoner of war.