Disunion follows the Civil War as it unfolded.

Just after midnight on Aug. 10, 1862, nearly 100 dismounted Confederate cavalry and state militia crept across the dry Texas Hill Country toward a campsite on the banks of the clear Nueces River, where 65 men slept, with just two on watch. Suddenly the dark silence was shattered by Confederate gunfire. Before sunset, those who had not escaped were dead or captured — and the captured were quickly executed.

What has been known in Texas for 150 years as the Battle of the Nueces was in fact a massacre of civilians by the very Confederate forces meant to keep peace and order in Texas. The massacred men, all Texas Germans, were fleeing, but not because they were insurrectionists. They were headed for Mexico to ultimately try to join the Union Army, yes, but they were not looking for a fight. Yet, instead of arresting them for avoiding conscription into the Confederate Army, First Lt. Colin McRae ordered a deadly night attack. Lt. Edwin Lilly, his subordinate, ordered the execution of wounded prisoners.

After a century and a half of debate, the case is clear, according to military and legal documents from the era. Lilly and his trigger men were guilty of murder. McRae was not grievously wounded, as previously speculated. Instead, he was either guilty of ordering the executions or at the very least derelict in his duty as commanding officer. He did not have legal authority to attack, only to arrest. Had either man gone to trial during the war or after, he would have rotted in prison or swung from the gallows as a war criminal.

And yet the Massacre on the Nueces was hardly unique. Whereas gray-on-blue atrocities would be common during the war, Texas in 1862 and 1863 would be the scene of repeated atrocities by Confederate troop against their own fellow citizens.

Still, nearly every examination of the so-called Battle of the Nueces has either had conflicting accounts, generally passed on through mistakes or biases, or merely been inconclusive in its findings. Was the shootout on the river a battle, or was it murder? Within the Texan German community the answer has been the latter. To once-upon-a-time supporters of the Confederacy, the answer was the former. The history books have never been clear. But what did the laws of war say?

Interestingly, the massacre came at a time when the idea of legally regulating war was changing significantly. From the Book of Deuteronomy to the Koran and through Catholic prescriptions for just war, most armed conflicts have been conducted under the laws of war. Not always perfectly. But generally and to this day; hence the Nuremberg Trials, the Geneva Conventions the prosecution of Lt. William Caley in Vietnam and his rare and unfortunate successors.

Originally religious and then customary in nature, these laws began to be formalized in the wake of the devastating Napoleonic wars in Europe. Beginning in the 1850s, nations strove for legislation and treaties governing combat, as well as the treatment of civilians and prisoners. Even as civil war raged in America, the First Geneva Convention was convened in Europe.

When the Civil War broke out in America, German-American jurist and philosopher Francis Lieber was enlisted by the War Department to write a code for the Union Army. Adopted as General Order 100 by the Union Army in 1863, the Lieber Code forbade the killing of prisoners, prohibited torture and insisted upon the ethical and humane treatment of civilians. It was at first criticized by Confederate generals — but they later adopted it for their own troops.

At the time of the massacre on the Nueces, regardless of the Lieber Code, the writ of habeas corpus had been suspended in the Confederacy for 13 crimes, ranging from treason and conspiracy to overthrow the government to desertion and espionage. In any of these cases, civilians could be held by military authorities without trial. The Texan Germans had probably committed a crime by plotting to join the Union Army, and yet they were killed outright — not held without trial.

Though they were called Germans, the Texas Germans had a long and productive history in the Lone Star state. They first came under Mexican rule in 1830 as the largest ethnic group arriving directly from Europe, along with Poles and Czechs, also Catholics. By the Civil War, the Texan Germans farmed the rich bottom land near New Braunfels and settled hard scrabble ranches near Fredericksburg, comprising 5 percent of the state’s population. Most opposed slavery and the Confederacy. After war came, some formed a secret Peace Party. But they were also this: citizens of the Confederacy, whether they liked it or not.

By 1862, and over President Jefferson Davis’ objections, the Conscription Act had been passed in Richmond, Va., quickly proving controversial. Slave owners didn’t have to serve. Eligible men could send replacements. No penalties for failing to report were proscribed. Without a national supreme court, the Confederacy deferred the matter to the states. The Texas Supreme Court upheld the law, but said it was not necessarily enforceable. The Confederate military authorities in Texas, under martial law and with the political support of Governor Francis R. Lubbock, took it upon themselves to round up draftees by force, regardless.

Out in the Hill Country, a feud had been building between Capt. James Duff, commander of the local militia known as the Partisan Rangers, and the Texas Germans, who were often resistant to the Confederacy. A former Union sergeant, Duff set about rounding up Germans. He got wind of plans by 65 of them to leave for Mexico and then make their way to New Orleans to join the Union Army. Duff dispatched a combined force of militia, led by Lieutenant McRae, and an assortment of regular Confederate cavalry.

The Germans were led by Fritz Tegener, a county treasurer. On Aug. 1, 1862, Tegener and his party slipped out of Fredericksburg, gathered at Turtle Creek and headed for the Rio Grande via Uvalde. There, on a small prairie surrounded by woods on the banks of the Nueces River, the men made camp and posted two of their number to keep watch while they slept.

As the Tegener’s party slept, McRae ordered an attack, to begin when he fired his pistol. At 1 a.m., the oaks and cedars were quiet except for the footfalls of nearly 100 Confederate soldiers closing in from just 300 yards away. A full moon overhead, however, illuminated everything. And soon the two watchmen emerged from the cedars. A trigger-happy Confederate fired a rifle shot that shattered the summer night stillness. One of the watchmen crumpled dead into the dry grass and caliche soil. There was no call to surrender.

From the very beginning, the attack violated McRae’s own order, and it quickly unraveled from there. Originally intended to be an attack by two columns using interlocking fire, the raid turned into a sporadic and disorganized charge. Awake now and armed, like everyone on the Texas frontier, the Germans returned fire and repulsed the first wave, then tried to force their way through the Confederates. But they were pushed back. Realizing they were in an untenable position, the remnants of the Teneger party tried to organize a defense, using saddles to shield themselves from a second charge that finally broke through. Nineteen men in Tegener’s party now lay dead. Nine men were wounded and taken prisoner. The rest fled for the Rio Grande or tried to make for home.

As daylight came, McRae’s men cared for the wounded, and there were rumors of sending for aid from nearby Ft. Clark. McRae had been wounded in the fighting. For years researchers have argued that he might have been incapacitated and lost control of his unit, and that Lilly alone ushered wounded prisoners away from camp. However, McRae was reported to only have been “slightly wounded,” according to an official Confederate Army muster from August 1862. As a result, it is unlikely that he had ever been incapacitated in his ability to command.

Nevertheless, at McRae’s order or not, Lilly had the wounded make their way — limping, panting, on shattered limbs or dragged into the woods — where he and his troops shot all of them through the back of the head. Nine bodies hit the ground, staining the dry grass. Later, the Confederates buried their dead but left the dead Germans to the vultures.

McRae’s initial report made no mention of the executions, indicating a cover-up. And on top of it all, on Oct. 18, 1862, McRae journeyed down to the Rio Grande where he found remnants of the Tegener party — and he killed eight more men.

It seems clear that McRae was in control of his men at the time of the executions, according to the Confederate muster of August 1862. As such he either failed to control Lilly — and was guilty of dereliction of duty — or he was in on the plan to shoot the prisoners. There is no question that Lilly committed murder; so did his troops. Even if the Tegener party had been suspected of breaking any of the 13 laws for which the writ of habeas corpus had been suspended, they should have been arrested, not attacked or executed. They were citizens of the Confederacy.

Related Disunion Highlights Explore multimedia from the series and navigate through past posts, as well as photos and articles from the Times archive. See the Highlights »

Confederate military authorities were only empowered to arrest civilians so they could be either discharged by or held indefinitely to be tried at a later date, according to “A Digest of the Military and Naval Laws of the Confederate States,” a comprehensive compilation of Confederate military law from the era. Neither the digest, nor the original suspension of the writ of habeas corpus by President Davis, mention any power of summary execution for the military. Nor does the Confederate Constitution or martial law. Atrocities were committed during the Civil War — but usually by opposing forces.

Clearly, by returning to kill more men later that year, McRae displayed a murderous pattern of behavior. Had either he or Lilly been tried — during the war or after Union occupation — he would have been imprisoned or even executed. He and Lilly did not conduct themselves as soldiers that day in August, 1862; they conducted themselves as killers.

A few surviving men from the Tegener party returned home to recount the massacre. The German community grieved and seethed. A few months after the war ended in 1865, families journeyed to Uvalde in the murderously hot month of August to retrieve the remains. They took what little was left to a graveyard in Comfort, Tex., and buried the remains under a marker that resides to this day, under a 36-star American flag.

Their deaths may be one of the largest atrocities by Confederate forces against their own citizens. And in Texas, there would be still more. In the century and a half since then, writers, scholars and descendants have debated what happened on the banks of the Nueces. But it is as clear as that river’s water: It was no battle. It was murder. It was a war crime.

Sources: W. W. Lester, “A Digest of the Military and Naval Laws of the Confederate States”; Ancestry.com, “Colin D. McRae: CO K 2nd Texas Cavalry”; Stanley S. McGowen, “Battle or Massacre? The Incident on the Nueces, August 10, 1862,” The Southwestern Historical Quarterly; Robert P. Felgar, “Texas in the War for Southern Independence, 1861-1865”; The Texas Handbook; Thomas Adam, ed., “Germany and the Americans: Culture, Politics, and History”; “Military: State Organized Militia in the Civil War,” Federation of American Scientists; Conscription Act of 1862; Constitution of the Confederate States of America; Jefferson Davis, Proclamation of Martial Law.

Richard Parker is a journalist in Texas whose work is syndicated by McClatchy-Tribune.







Researcher Emily Boyd studies journalism and English at the University of Texas at Austin.