A NEW ARMY
THE LITTLE ARMY of 17,000 professionals with which the United States began the war was suddenly swollen by an enormous influx of civilians, first of 75,000 volunteers, signing on for ninety days in the first flush of idealistic zeal; then by the enlargement of the numbers and lengthening of the service already that first summer; and then, as the war ground on, by conscripts drawn by the coercion of state power in the hundreds of thousands. These farm boys and small-town men, and raw civilians from the growing cities, would not under ordinary circumstances have had any connection at all with war and the military life. It was the nation’s first experience of a modern popular army drawn from the whole people. A handful of professional soldiers had to fashion a giant army out of these thousands who were not soldiers, helped, or hindered, by the politicians appointed to army commands. In the four years of war about two million men served, and more than a hundred thousand went before courts-martial for some offense. The greater number of offenses, to be sure, were minor, but also many resulted in severe punishment, including being shot to death.
This transformed army inherited a military code of conduct that reflected the disciplining severities of a long European professional military tradition—including summary execution by firing squad for serious dereliction, as the military tradition, with its insistent rigidity, defined it. All capital cases were supposed to come to the president; for most of the war that was the law. But it is clear that not all of them did.
If one had never heard the Lincoln legend and encountered only Lincoln the tenacious war leader, one might believe that he would allow the military justice system to function according to this tradition without any intrusion. Lincoln, as we have seen throughout this book, had two sides, one of which was the realistic and resolute war leader who persisted after multiple defeats; who pressed his generals to take the battle to the enemy; who insisted that the objective was the destruction of Lee’s army and not the capture of territory; who said that breath alone kills no rebels; who remarked that he regretted that war did not admit of holy days; who asked with rhetorical sarcasm whether he was to fight with elder stalks filled with rose water. This statesman-commander could take his losses, even after a destructive defeat like Fredericksburg. That Lincoln, the thoroughly realistic analyst of the larger scene and the long-range objective, might have accepted the hard-line argument of many of his generals and some civilians—that severe punishments, including executions, were necessary to the discipline of the armies. Or at least he might have left the issue untouched by executive intervention.
But that was not the side of Lincoln that prevailed. When a wife or a congressman told him about a soldier about to be shot, he sent a telegram and stopped it. When he sat with the papers from a court-martial ordering a soldier to be shot, again and again he said no.
THE SLEEPING SENTINEL
THE MOST FAMOUS of his military pardons came in 1861, before anyone had had much experience with the grim realities of the whole people’s war. This case was to have a gaudy afterlife as a treacly poem and as a legend, but for all the legendary improvements, it turns out that the bare bones of the story are true.
William Scott was a volunteer in that first wave, a private in the Third Vermont Volunteers, which was part of the Army of the Potomac that McClellan whipped into shape around Washington after Bull Run. Private Scott, while on sentry duty at Chain Bridge, fell asleep. The generals and the court-martial apparently decided to impress upon these new soldiers the seriousness of what they were about and, as prescribed by received military law, sentenced Scott to be shot dead by a firing squad.
Shocked Vermonters who were in Washington protested to the president. A friend of Scott’s mother, Mrs. Horatio King, the wife of the postmaster in Buchanan’s cabinet, wrote him a letter, which had some of the flavor of the poem that would appear in 1863.
Allow me to address you—You in your high position, in whom the power of life, or, death in this case is vested.—I come before you—I implore you—almost on bended knee, I implore you, to interpose and by your pardon save the life of him who by military law is doomed to die an ignominious death, tomorrow.
Mrs. King made a sharp distinction between a professional army and the army of which young Scott was a part—a distinction that would be important to Lincoln later, in his exercise of clemency:
I am aware that the most exemplary discipline in our army should be observed,—and, that, the most rigid punishment for real crime should be enforced. And were this, a foreign army, with life long hireling soldiers—trained to do their masters bidding, be it right, or be it wrong, my voice should not be heard in their behalf—But, Sir, the case is so different.
Young Scott was no lifelong hireling soldier. Mrs. King cited Lincoln’s own call for volunteers:
You call for help—you call on our common country to come to the rescue, and save this glorious Union from that destruction into which its foes would plunge it. How nobly—how bravely it has responded to that call—and among the rest is William Scott of company H, 3 Vermont Volunteers. Inspired with love of Country—his soul fired with purest patriotism—young and ardent—Sacrificing home and all its cherished endearments—burning with intense desire to meet the foe in deadly combat—
Private Scott’s offense had an explanation:
He comes to Washington—full of noble—brave resolve—And he has never changed! Noble and brave still! Is it so? Then why, condemned to die?—Unused to Camp life—unused to military discipline—the exhaustion of the climate (new to him)—the exhaustion of military discipline (new to him) and the enfeebling effects of temporary illness—all conspired this ruin—Exhausted nature could endure no more, and obeying its own dictates, sought relief in momentary sleep—Sir:—It was not voluntary!—And shall he die?—Shall this brave patriot this son of New England—of our Common Country—who has given his life for its defense—shall he die before his heaven sent mission be accomplished? It may be said, the discipline of the Army requires it? No, Sir, I think I know enough of human nature, to know, that, the whole volunteer army will bless you…and that every one will double their diligence as duty requires—
The legend that would grow out of this event would have a more melodramatic rescue, but what did happen, apparently, was that Lincoln—who would demonstrate over time that he agreed with many of Mrs. King’s points but had not yet had much practice intervening in military justice—would request General McClellan to pardon Scott. The pardon warrant was signed by McClellan. Maybe Lincoln and Mary rode out to Camp Advance and talked to McClellan about it; we do know they took a drive that day. McClellan wrote to his wife on September 8, the day before Scott was to have been executed, that “Mr. Lincoln came this morning to ask me to pardon a man I had ordered to be shot, suggesting that I could give as a reason…that it was by request of the ‘lady president.’”
The sentimental poem that would be produced by a government clerk in 1863—after Lincoln and the country had had much more experience with his role as the pardoner of soldiers—would have a more wonderful intervention: the president himself roaring up in his coach, at the last minute, as the “fatal volley” is about to sound, with a pardon in his hand:
Then suddenly was heard the noise of steeds and wheels approach,
—And, rolling through a cloud of dust, appeared a stately coach.
On, past the guards, and through the field, its rapid course was bent,
Till, halting, ’mid the lines was seen the nation’s President!*57
However his pardon was effected, William Scott, the sleeping sentry from Vermont, did return to his company and did then fulfill his legendary role by dying bravely on April 16, 1862, in an attack by Vermont volunteers at the battle of Lee’s Mills, before Yorktown, in an early stage of the Peninsula Campaign. As the grapevine passed this story through the country and the army, Scott was said to have actually addressed dying words to the president who had pardoned him. The poem had the dying William Scott bless the preside
nt:
While yet his voice grew tremulous, and death bedimmed his eye—
He called his comrades to attest, he had not feared to die!
And, in his last expiring breath, a prayer to heaven was sent—
That God, with His unfailing grace, would bless our President!
The poem, recited by a noted elocutionist, first in the executive mansion and then in the Senate chambers, in 1863, to audiences that included President and Mrs. Lincoln, would be printed as a little pamphlet along with Portia’s speech from The Merchant of Venice and would pass on into myth.
LEARNING ABOUT MILITARY JUSTICE
IN THE FIRST WINTER and second spring of the war, before any such poems had been written, Lincoln’s preliminary ventures into the rapidly expanding military justice system had a certain understandable tentativeness. He would ask the army’s chief lawyer, a West Point graduate and longtime army man with the resonant American name of John Fitzgerald Lee, what he could do and how he should do it. In Major Lee one can detect a certain wariness about interference by the new civilian group over in the executive mansion, and on Lincoln’s side a developing conviction that he should exercise responsibility. In response to a presidential comment on one case Judge Advocate Lee remarked: “The President’s suggestion as to the construction to be…put upon the finding is in accordance with legal logic…but it is not according to the rule and usage of courts martial.” Although the case “would be bad pleading in a court of common law,” it “is good in a court martial.” Lincoln was learning the difference between military law and the law to which he was accustomed in the civil courts of Illinois; one can imagine him formulating the wisecrack of a later century that military justice is to justice as military music is to music.
In another early pardon—April 10, 1862—Lincoln wrote pointedly to General George G. Meade: “What possible injury can this lad work upon the cause of this great Union? I say let him go.”
In July 1862 Congress created a new office of Judge Advocate General, and Postmaster General Montgomery Blair passed on to Lincoln a letter saying that the old-line army hoped that Major Lee would be appointed to that office. But on September 3, 1862, Lincoln appointed a civilian lawyer and politician named Joseph Holt, whose education had been not at West Point and not in the army but in Kentucky politics.*58
Holt, a former Democrat from Kentucky, was the Union-supporting member of Buchanan’s cabinet who, as the outgoing secretary of war, had handed Lincoln the fateful message from Major Anderson and the officers at Fort Sumter. As judge advocate general, Holt would play a leading role in dealing with Copperheads; after Lincoln’s assassination he would be in charge of the investigation and first trial of the conspirators. But before he was called upon to perform those more widely known services, he dealt every day with the expanding flow of capital cases coming from the courts-martial. He made recommendations to Lincoln and carried out the president’s decisions even when he disagreed with them, as he often did.
In a representative case in the fall of 1862, a court-martial meeting in Helena, Arkansas, had fastened on one Private Conrad Zachringer of Company A, Twelfth Missouri Volunteers, an imposing series of grim formal classifications of his multiple alleged offenses. Private Zachringer, according to the record, “caused, and excited mutiny by taking hold of First Lieutenant Mittman, then officer of the day, by the throat”(thereby violating the Seventh Article of War) and “did strike First Lieutenant Engelmann, and throwed [sic] him on the ground” (thereby violating the Ninth Article of War) and “did refuse to obey” and “did resist and strike”(thereby violating the Twenty-seventh Article of War). Therefore, despite his plea “that he was drunk and knew nothing of them,” he had been found guilty on all charges and sentenced to be shot dead.
No, said Lincoln, on October 25, 1862; don’t shoot him dead.*59 Lincoln perceived that, despite all the elaborate paraphernalia of military law, the offense amounted to a drunken binge, and on October 25 he ordered an enormous reduction in Zachringer’s punishment from death to a year’s imprisonment and a dishonorable discharge.
THESE CASES CAME BY THE HUNDREDS
WITH THE ENLARGEMENT of the war, these cases would grow in number. Joseph Holt himself, in an interview with John Nicolay after the war, described the sessions that would eventually result:
The President would call me over to go over them [capital cases from courts-martial] with him—occupying hours at a time. He was free and communicative in his criticism and comment on them, and his true nature showed itself in these interviews…In a great army like ours these cases came by the hundreds.
Those hundreds of courts-martial would order some private (as it almost always was) to be shot for “desertion” (as it most often was) or for “cowardice and absence without leave” or for “mutiny” or for “violence to a superior officer” or for “disobedience and insubordination” or for “striking and using threatening language toward his superior officer” or for “willful disobedience of orders” or for “sleeping on post.” And Lincoln would, again and again, grant a reprieve, a commutation, a pardon—he would stop the execution. Holt described Lincoln’s response: “He shrank with evident pain from even the idea of shedding human blood…all these many sentences impressed him as nothing short of ‘wholesale butchery.’ In every case he always leaned to the side of mercy. His constant desire was to save life.”
Often before a case came through military channels, it would be brought to the president by a distressed father, or a congressman, or friends at home, and he would send a telegram ordering that the execution be suspended and the papers sent to him. He would then look into the papers for extenuation, which often he would find, and he would instruct Holt to issue a pardon or commutation.
One realizes how important it was that they now had the telegraph. Sometimes the telegram would be sent on the day before a scheduled execution or even on the day of a scheduled execution, so that the last-minute, hairsbreadth aspect of the anecdotes of folklore had a certain chilling truth.
Fairly often Lincoln’s telegraphed clemency would exhibit an unsettling doubt about the soldier’s name, or the sentence, or the scheduled time of the execution, reminding the reader that this grim business was taking place in the chaos of a gigantic, disorganized nineteenth-century war. More chilling still are those telegrams in which there appears a troublesome phrase like “suspend the execution if it is not already done.” In at least four cases printed by the editors of The Collected Works, we read the melancholy message that Lincoln’s attempted clemency came too late.
FINDING SOME REASON
IN NICOLAY’S 1875 interview Holt reproduced an argument he himself made (like the arguments of many generals and some hard-boiled civilians) in behalf of the executions:
I used to try and argue the necessity of…executing these sentences. I said to him, if you punish desertion and misbehavior by death, these men will feel that they are placed between two dangers and of the two they will choose the least. They will say to themselves, there is the battle in front where they may be killed, it is true, but from which they have a good chance to escape alive; while they will know that if they fly to the rear their cowardice will be punished by certain death.
But Lincoln, as Holt remembered his response, was no more persuaded by Holt than he would be when similar arguments were made by the many military officers:
Yes, your reasons are all very good, but I don’t think I can do it. I don’t believe it will make a man any better to shoot him, while if we keep him alive, we may at least get some work out of him.
And then, as Holt quoted the dead president through the mists of memory, Lincoln mentioned a category that was to become a part of his legend, the “leg case”—a soldier with a brave heart but with cowardly legs when the battle begins; “a man who honestly meant to do his duty but who was overcome by a physical fear greater than his will.”
On his way overseas in World War I, Captain Harry S. Truman of the 129th Field Artillery from Mi
ssouri, a reader of books about Lincoln (despite his Missouri-bred mother’s disapproval), would write to his girlfriend Bess Wallace back home that he hoped he would not prove to be one of the leg cases.
Lincoln also quickly made it a principle not to allow the execution of the very young. He said in a wire to General Meade: “I am unwilling for any boy under eighteen to be shot” (October 8, 1863). The father of the boy in that case “affirms that he is yet under sixteen.” Again and again Lincoln would stop the execution of a “boy” or a “lad” who was seventeen, sixteen, fifteen, “very young.”
Lincoln would regularly adduce—sometimes in combination with youth—“insanity,” “unsoundness of mind,” or “other debilitating ailments,” or say that a soldier was “so diseased as to be unfit for Military duty.” A different kind of extenuation, also usually in combination with others, was the hardship and poverty of the family. “[The mother] says she is destitute.”
A few pardons refer to misunderstandings on the part of those (of German background, usually) who did not fully comprehend what was said to them either by a mustering official or by an officer. Problems arose about recruiting and mustering youngsters, as is indicated by this terse message to Holt on February 10, 1864:
Boy discharged and mustering officer rebuked.
President Lincoln- The Duty of a Statesman Page 42