Battle Cry of Freedom

by James M. McPherson

  This reasoning buttressed Lincoln's policy in the most celebrated civil liberties case of the war—the military arrest and conviction of Vallandigham for disloyalty. Vallandigham was hardly a selfless martyr in this case; on the contrary, he courted arrest in order to advance his languishing candidacy for the Democratic gubernatorial nomination in Ohio. He found an unwitting ally in General Burnside, whose political judgment proved no more subtle than his military judgment at Fredericks-burg. Appointed commander of the Department of the Ohio (embracing states bordering that river) after transfer from the Army of the Potomac, Burnside decided to come down hard on the copperheads. In April 1863 he issued a general order declaring that any person committing "expressed or implied" treason would be subject to trial by a military court and punishment by death or banishment.13 What constituted implied treason Burnside did not say, but the country would soon find out.

  Vallandigham recognized this order as his opportunity. With plenty of advance publicity to ensure that Burnside's agents would be on hand, he spoke at a rally in Mount Vernon, Ohio, on May 1. His address was a rehash of standard antiwar themes. As recorded by Burnside's staff officer, Vallandigham denounced this "wicked, cruel and unnecessary war" waged "for the purpose of crushing out liberty and erecting a despotism . . . a war for the freedom of the blacks and the enslavement of the whites." This was enough for Burnside. He sent a squad of soldiers to arrest Vallandigham at his home in Dayton. In a manner that lent credence to accusations of despotism, soldiers broke down the door in the middle of the night and hustled Vallandigham away leaving behind his hysterical wife and a terrified sister-in-law. While his supporters

  12. Hesseltine, Lincoln and the War Governors, 311–18; Nevins, War, II, 391–93.

  13. O.R., Ser. I, Vol. 23, pt. 2, p. 237.

  rioted and burned down the office of Dayton's Republican newspaper, a military commission met in Cincinnati on May 6 and convicted Vallandigham "of having expressed sympathy" for the enemy and having uttered "disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government [to suppress] an unlawful rebellion."14 Unwilling to go so far as to put Vallandigham before a firing squad, the commission recommended his imprisonment for the war's duration, and Burnside so ordered. Vallandigham filed for a writ of habeas corpus, which was denied by a federal judge who pointed out that Lincoln had suspended the writ in such cases.

  These proceedings produced cries of outrage from Democrats and murmurings of anxiety from many Republicans. The most important protest came from a meeting of War Democrats in Albany, who pointedly asked whether the government was trying to suppress rebellion in the South or "to destroy free institutions in the North." The Vallandigham case did indeed raise troubling constitutional questions. Could a speech be treason? Could a military court try a civilian? Did a general, or for that matter a president, have the power to impose martial law or suspend habeas corpus in an area distant from military operations where the civil courts were functioning?15

  These questions went to the heart of the administration's policy for dealing with the fire in the rear. Lincoln would have preferred not to have had the issue raised in this particular manner. He was embarrassed by Burnside's arrest of Vallandigham, about which the president learned from the newspapers. Presented with a fait accompli, Lincoln decided that more damage would be done by repudiating Burnside than by upholding him. But in an attempt to minimize the political consequences, Lincoln commuted Vallandigham's sentence from imprisonment to banishment. On May 25 Union cavalry escorted the Ohioan under flag of truce to General Bragg's lines south of Murfreesboro, where the reluctant rebels accepted this uninvited guest.

  Lincoln's shrewd move failed in one respect: while in exile, Vallandigham rode to the gubernatorial nomination on a wave of sympathy from Ohio Democrats. After traveling through the Confederacy to Wilmington, he boarded a blockade-runner for Canada and made his way to the border city of Windsor, from which he conducted his campaign

  14. Ibid., Ser. II, Vol. 5, pp. 633–46.

  15. The Albany resolutions are published in Freidel, ed., Union Pamphlets, II, 740–45.

  for governor. Before leaving the South, he spoke with several Confederate congressmen and army officers. He made clear to them his commitment to reunion through an armistice and negotiations. Southerners replied that they would accept peace only on the basis of independence. If Vallandigham thought the Union could be restored by compromise, they declared, he was "badly deluded." In a confidential interview with a Confederate agent, Vallandigham said that if the South "can only hold out this year . . . the peace party of the North would sweep the Lincoln dynasty out of existence." Vallandigham clung to his hope for eventual reunion, but left this agent with the impression that if the South refused to come back "then possibly he is in favor of recognizing our independence."16

  It was on these principles—minus the "possible" recognition of southern independence—that Vallandigham conducted his strange campaign-in-exile for governor. Long before voters went to the Ohio polls in October, however, an upturn of Union military fortunes would undermine his peace platform. In the meantime Lincoln sought to defuse the civil liberties issue with two public replies to Democratic critics. He rejected the charge that Vallandigham had been arrested "for no other reason than words addressed to a public meeting." Rather it was "because he was laboring, with some effect, to prevent the raising of troops [and] to encourage desertions. . . . He was damaging the army, upon the existence and vigor of which the life of the nation depends." The president than asked a rhetorical question that turned out to be the most powerful—and famous—part of his argument. "Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? . . . I think that in such a case to silence the agitator and save the boy is not only constitutional, but withal a great mercy." This "giant rebellion" reached into the North itself, Lincoln continued, where "under cover of 'liberty of speech,' 'liberty of the press,' and Habeas corpus,' [the rebels] hoped to keep on foot amongst us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause." Thus the whole country was a war zone and military arrests in areas far from the fighting front were justified. Civil courts were "utterly incompetent" to deal with such a massive threat to the nation's life. This was precisely the contingency that framers of the

  16. Klement, The Limits of Dissent, 209–11; Jones, War Clerk's Diary (Miers), 229–30, summarizing a memorandum of the interview written by agent Robert Ould. The memorandum itself has been lost.

  Constitution foresaw when they authorized suspension of the writ of habeas corpus in cases of rebellion or invasion. With a homely but effective metaphor, Lincoln affirmed that he could no more believe that the necessary curtailment of civil liberties in wartime would establish precedents fatal to liberty in peacetime "than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life."17

  Lincoln's two letters on civil liberties were published far and wide by the newly established Union League and Loyal Publication Society. Believing that the copperheads were organized in vast secret societies such as the Knights of the Golden Circle and Order of American Knights, unionists felt impelled to fight back with their own societies. Founded by businessmen and professional men of substance and influence, the Union Leagues, Loyal Leagues and their publication boards achieved much greater power than the Democratic secret societies, whose supposed legions existed more in the fevered imaginations of Republicans than in fact. The Union Leagues became in effect an auxiliary of the Republican party, which began to call itself the Union party in several states—thereby implying that the opposition was a dis-union party.18

  The first successes of this counterattack against Democratic defeatism came in New Hampshire and Connecticut. These states held gubernatorial elections in the spring. The results in 1863 wer
e closely watched elsewhere as a portent. In both states the Democrats nominated peace men of the Vallandigham stripe, hoping to cash in on voter disillusionment with the war. Republicans and Union Leagues mobilized to stem the apparent Democratic tide. The War Department helped by granting well-timed furloughs to soldiers who were expected to go home and vote

  17. CWL, VI, 260–69, 300—06. Vallandigham's attorneys appealed his conviction to the Supreme Court, arguing that the military trial of a civilian in a non-war zone where civil courts were functioning was unconstitutional. The Court ducked this issue in 1864, claiming no appellate jurisdiction over the proceedings of a military court. But in 1866, after the wartime emergency was over, the Supreme Court ruled that a similar military trial in 1864 of an Indiana copperhead-named Lambdin Milligan was unconstitutional.

  18. For a brief history of the Union Leagues and similar societies, and a broad sample of their publications, see Freidel, Union Pamphlets. Frank L. Klement, Dark Lanterns: Secret Political Societies, Conspiracies, and Treason Trials in the Civil War (Baton Rouge, 1984), compares the membership and purposes of these various organizations.

  Republican. These efforts succeeded—but just barely. The Republican candidate in Connecticut won with 52 percent of the vote. In New Hampshire the presence of a War Democratic third party prevented any candidate from winning a majority and threw the election into the Republican legislature, which elected their man.19

  A prime issue in both elections was the draft, enacted by Congress on March 3, 1863. Democrats added conscription to emancipation and military arrests in their catalogue of Republican sins. The Enrollment Act of 1863 was designed mainly as a device to stimulate volunteering by the threat of a draft. As such it worked, but with such inefficiency, corruption, and perceived injustice that it became one of the most divisive issues of the war and served as a model of how not to conduct a draft in future wars.

  By the beginning of 1863 recruitment in the North arrived at the same impasse it had reached in the South a year earlier. The men likely to enlist for patriotic reasons or adventure or peer-group pressure were already in the army. War weariness and the grim realities of army life discouraged further volunteering. The booming war economy had shrunk the number of unemployed men to the vanishing point. The still tentative enlistment of black soldiers could scarcely begin to replace losses from disease and combat and desertion during the previous six months. Like the Confederacy in early 1862, the Union army in 1863 faced a serious manpower loss through expiration of enlistments: 38 two-year regiments raised in 1861, and 92 nine-month militia regiments organized in 1862 were due to go home during the spring and summer of 1863. This prompted Congress to act.

  In its nationalizing tendencies the resulting law was similar to the recently passed Banking Act. State governors had taken the lead in the organization of volunteer regiments in 1861–62. The draft was a national process. Congress authorized a Provost Marshals Bureau in the War Department to enforce conscription. This Bureau sent to each congressional district a number of provost marshals whose first task was to enroll every male citizen and immigrant who had filed for citizenship aged twenty to forty-five.20 This became the basis for each district's quota

  19. Christopher Dell, Lincoln and the War Democrats (Rutherford, N.J., 1975), 231–36; John Niven, Connecticut for the Union: The Role of the State in the Civil War (New Haven, 1965), 305–8.

  20. Men eligible for the draft were divided into two classes. Class 1 included all single men and married men aged 20 to 35. Class 2 included married men over 35. Men from class 2 would not be drafted until class 1 had been exhausted. In practice, that meant virtually never.

  in the four calls for new troops that Lincoln issued after passage of the conscription act in March 1863. In the first draft (July 1863), provost marshals called up 20 percent of the enrollees, chosen by lot in each district. In the three drafts of 1864, the War Department assigned each district a quota determined by its pro rata share of the number of soldiers called for by the president, after adjustment for men who had already enlisted from the district. Each district had fifty days to fill its quota with volunteers. Those that failed to do so then held a lottery draft to obtain a sufficient number of men to meet the quota.

  If a man's name was drawn in this lottery, one of several things would happen to him next—the least likely of which was induction into the army. Of the men chosen in the four drafts, more than one-fifth (161,000 of 776,000) "failed to report"—fleeing instead to the West, to Canada, or to the woods. Of those who did report to the provost marshal's office, one-eighth were sent home because of already filled quotas. Three-fifths of the remaining 522,000 were exempted for physical or mental disability or because they convinced the inducting officer that they were the sole means of support for a widow, an orphan sibling, a motherless child, or an indigent parent. Unlike the Confederate Congress, Union lawmakers allowed no occupational exemptions. But a draftee who passed the physical exam and could not claim any dependent relatives still had two options: he could hire a substitute, which exempted him from this and any future draft; or he could pay a commutation fee of $300, which exempted him from this draft but not necessarily the next one.21 Of the 207,000 men who were drafted, 87,000 paid the commutation fee and 74,000 furnished substitutes, leaving only 46,000 who went personally into the army. The pool of substitutes was furnished by eighteen- and nineteen-year olds and by immigrants who had not filed for citizenship, who were not liable to conscription.22

  21. Criticisms of commutation led to its repeal in 1864—except for conscientious objectors—so that with this minor exception the commutation option did not apply to the last two drafts of July and December 1864.

  22. This and the following paragraphs are based on several studies, especially Fred A. Shannon, The Organization and Administration of the Union Army, 1861–1865, 2 vols. (Cleveland, 1928), I, 195–323, II, 11–260; Eugene C. Murdock, Patriotism Limited 1862–1865: The Civil War Draft and the Bounty System (Kent, Ohio, 1967); Murdock, One Million Men: The Civil War Draft in the North (Madison, 1971); and Peter Levine, "Draft Evasion in the North during the Civil War, 1863–1865," JAH, 67 (1981), 816–34. Nearly all draftees were under 30 years of age, for older men generally were able to claim exemption for cause or to pay for commutation or a substitute.

  There were numerous opportunities for fraud, error, and injustice in this cumbersome and confusing process. The enrollment of men eligible for the draft was only as good as the officials who carried it out—and some of them were venal or incompetent. Enrollers probably missed even more of the floating population than census takers missed. On the other hand, some officials padded their rolls with fictitious names in order to draw their pay without doing the hard work of canvassing door to door. Timid enrollers feared to venture into Butternut counties of the Midwest, coal-mining districts of Pennsylvania, tough neighborhoods in New York, and other areas hostile to the draft and to the war. Many men "skedaddled" to avoid enrollment. Consequently some districts were under-enrolled while others had padded lists, with resulting inequities in quotas. Governors and congressmen brought pressure for adjustment of quotas, and some districts had to be re-enrolled. Governor Seymour of New York (a Democrat) accused the administration of padding the enrollment in Democratic districts to increase their quotas. Although discrepancies between Democratic and Republican districts did sometimes occur, the usual reason was not a Republican plot but rather a smaller previous enlistment from Democratic districts, leaving a larger quota to be conscripted.

  Numerous openings for fraud also existed after enrollment was completed and men whose names had been drawn were called for examination. Surgeons could be bribed, false affidavits claiming dependent support could be filed, and other kinds of under-the-table influence could be exerted. Some potential draftees feigned insanity or disease. Others practiced self-mutilation. Some naturalized citizens claimed to be aliens.

  In the South, the privilege of hiring a substitute had produced the bitter sl
ogan of "rich man's war and poor man's fight." In the North, commutation was even more unpopular than substitution. "Three Hundred Dollars or Your Life" blazoned the headlines in Democratic newspapers. A parody of a popular recruiting song made the rounds: "We Are Coming, Father Abraham, Three Hundred Dollars More."23 The price of commutation amounted to almost a year's wages for an unskilled laborer. "The rich are exempt!" proclaimed an Iowa editor.

  23. Basil L. Lee, Discontent in New York City 1861–1865 (Washington, 1943), 90; Foote, Civil War, II, 151.

  "Did you ever know aristocratic legislation to so directly point out the poor man as inferior to the rich?" On the face of it, the privileges of commutation and substitution did seem to make the conscription act, in the words of a modern historian, "one of the worst pieces of class legislation ever passed by the United States Congress."24

  But a closer examination challenges this conclusion. Substitution was hallowed by tradition, having existed in European countries (even in France during the levée en masse), in American states during the Revolution, in the militia, and in the Confederacy. The Republican architects of the draft law inserted commutation as a means of putting a cap on the price of substitutes. In the South the cost of a substitute had already soared above $1,000. The commutation alternative in the North would prevent the price of a substitute going much higher than $300. Republicans saw this as a way of bringing exemption within reach of the working class instead of discriminating against them.