Lincoln Approves Act Making Espionage "punishable by death"
With a brief "Approved," President Abraham Lincoln allowed the renewed application of the 57th Article of War, passed by Congress 55 years earlier, that permitted a court-martial to execute any person found communicating details about military operations to the enemy. The War Department issued this text in a proclamation on August 26, 1861, which was published in newspapers throughout the nation.
On August 24, 1861. General John E. Wool issued General Orders No. 4 from Fortress Monroe to the Department of Virginia, which called the attention of all citizens in his department to the fifty-sixth and fifty-seventh articles of war as a warning against supplying the Confederacy with goods, protection, or information.
In March 1862, military authorities seized the printing office and arrested the editor of the Sunday Chronicle in Washington, D.C. for publishing news of military operations and movements in violation of the 57th Article. After the editor explained that the information had made it into the newspaper without his supervision and promised to guard against a reoccurrence, the military governor suspended the arrest order.
[ABRAHAM LINCOLN.] Autograph Endorsement Signed, August 7, 1861, [Washington, D.C.] Also signed by Secretary of War Simeon Cameron. 2 pp., 8" x 10". Some toning along folds; very good.
By the 57th Article of the Act of Congress entitled An Act for Establishing Rules and Articles for the Government of the United States, approved April 10th 1806 "holding correspondence with or giving intelligence to the enemy either directly or indirectly is made punishable by death or such other punishment as shall be ordered by the Sentence of a Court Martial. Public safety requires strict enforcement of this Article."
It is therefore Ordered that all correspondence and communication verbally or by writing printing or telegraphing respecting operations of the army or military movements on land or water or respecting the troops, camps, arsenals, intrenchments or military affairs within the several military districts by which intelligence shall be directly or indirectly given to the enemy without authority and sanction of the Major General in command, be and the same are absolutely prohibited and from and after the date of this order persons violating the same will be proceeded against under the 57th Article of War.
[Endorsement in Lincoln's hand:]
Aug. 7, 1861.
On April 10, 1806, Congress passed and President Thomas Jefferson signed "An Act for establishing Rules and Articles for the government of the Armies of the United States." The act consisted of 101 articles governing a wide array of issues that might arise in the army and detailed provisions for holding courts-martial. Several of the articles permitted a court-martial to sentence a person to death for a variety of offenses, including any officer or soldier for encouraging or joining a mutiny (Article 7); any officer or soldier for not reporting or endeavoring to suppress a mutiny (8); any officer or soldier for striking his superior officer (9); any soldier or officer for deserting (20); any soldier or officer for advising another to desert (23); any sentinel for "sleeping upon his post" (46); any officer for raising "false alarms in camp" (49); any officer or soldier for committing violence on a sutler (51); any officer or soldier "who shall misbehave himself before the enemy, run away, or shamefully abandon any fort, post, or guard" (52); any person for revealing the watchword (53); any soldier in a foreign area for forcing a safe guard (55); any person for supplying, harboring, or protecting the enemy (56); any person for corresponding with or giving intelligence to the enemy (57); any soldier or officer for compelling the commander to surrender a garrison, fortress, or post (59); and any persons, not citizens of the United States, "found lurking as spies, in or about the fortifications or encampments of the armies of the United States" (101). This code remained in force for nearly seventy years, until Congress passed a revised code in 1874.
On February 13, 1862, Congress passed and President Lincoln signed "An Act making an Appropriation for completing the Defences of Washington, and for other Purposes." A portion of this act amended Section 2 of Article 101 of the 1806 law. The amendment added "or rebellion against the supreme authority of the United States" to the original "in time of war" and extended the coverage of the article to citizens of the United States by removing the clause, "not citizens of, or owing allegiance to the United States of America." Because the U.S. government insisted that Confederates remained U.S. citizens, the amended law permitted Army courts-martial to punish spies during a rebellion.
On March 3, 1863, Congress passed "An Act for enrolling and calling out the national Forces, and for other Purposes." The last section of the act declared "That all persons who, in time of war or of rebellion against the supreme authority of the United States, shall be found lurking or acting as spies, in or about any of the fortifications, posts, quarters, or encampments of the armies of the United States, or elsewhere, shall be triable by a general court-martial or military commission, and shall, upon conviction, suffer death."
In August 1863, a court-martial in Maryland found Hazel B. Cashell guilty of giving intelligence to the enemy but rendered a sentence of an admonition to be on his guard in answering inquiries from the enemy. Secretary of War Edwin M. Stanton publicly denounced the court's finding, saying, "For such action by a military court, in presence of such flagrant crime, there is believed to be no precedent." Stanton also ordered the publication of his review of the court-martial's action for the governance of other courts-martial.
Approximately 500 men, in both North and South, were executed by shooting or hanging during the Civil War, but two-thirds of the executions were for desertion. Early in the Civil War, military authorities generally dealt with desertions with some leniency, generally assigning other punishments, such as hard labor, forfeiture of pay, or dismissal from the service. As the war continued, however, commanders on both sides became more strict. The number of spies that may have been executed by either side is not known, in part because of a lack of records and the summary execution of some spies without trial.
Confederate Captain John Yates Beall was hanged in March 1865 for a plot to free Confederate prisoners of war, derail passenger trains, and seize Union ships. Robert Cobb Kennedy was hanged as a spy and guerrilla in March 1865 for his role in attempting to burn New York City in November 1864.
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