None of these difficulties affected the outcome of the case. Enough witnesses, including Confederate and Union veterans alike, testified to brutal acts by Wirz that his responsibility for atrocities at Andersonville was well established. With characteristic fury, Holt described the trial as giving the picture of Wirz “rather as a demon than a man.” In late October, the commission returned verdicts of guilty on the charges of murder and conspiring against Union prisoners in violation of the laws of war. It sentenced Wirz to death. On November 10, Wirz was hanged at the Old Capitol Prison, the site where John Marshall’s fellow justices had stayed while deliberating over prize cases a half century before and where in 1819 Congress had debated Andrew Jackson’s conduct in Florida. Wirz’s body was interred next to the Lincoln conspirator Atzerodt in the Old Arsenal Penitentiary.
CONVICTIONS IN THE Lincoln assassination case and the Wirz prosecution distracted the single-minded Joseph Holt from difficulties that his military commissions were fast running into. Rather than being chastened, Holt began to plan on expanding the use of military commissions to try the Confederate officers whose names came up during the Wirz proceedings.
Yet the difficulties that arose in the two most prominent trials of the summer and fall of 1865 showed up in less closely watched prosecutions as well. At Beall’s trial in February, James T. Brady, the prominent trial lawyer, had accused the Union of hypocrisy. “Where do you make the distinction,” he wondered
between the march of Major-General Sherman through the enemy’s country, carrying ravage and desolation everywhere, destroying the most peaceable and lawful industry, mills and machinery, and everything of that nature; where do you draw the line between his march through Georgia and an expedition of twenty men acting under commission who get into any of the States we claim to be in the Union, and commit depredations there?
In retrospect, even the Lincoln assassination case seemed troubled. What, after all, was assassination? Why was killing the commander in chief of the Union armies unlawful while killing a conscripted private on the battlefield was not? It was not that there were no answers to these questions. Booth had acted without a uniform or any other distinguishing mark to set himself off as a combatant. So, too, with John Yates Beall on the Great Lakes, Robert Kennedy in New York City, and George St. Leger Grenfell in Chicago—all had engaged in a kind of violence that threatened to undo the distinction between soldiers and noncombatants. But the differences were subtle ones, the categories new and unfamiliar to combatants and lawyers alike.
Sure enough, as Wirz’s trial was getting underway, a military commission trial of guerrillas in Texas resulted in the acquittal of all the defendants. In December 1865, a commission in the Department of North Carolina concluded that it lacked jurisdiction to prosecute Confederate general George Pickett (of Pickett’s Charge fame at Gettysburg) for executing twenty-two North Carolinians captured while serving in the Union Army after deserting from Confederate service. Holt was infuriated (Lieber was too), but he dropped the case after a second tribunal could not find enough evidence to show that the executed men had been entitled to prisoner of war treatment. (It did not harm Pickett’s prospects that Ulysses S. Grant intervened on his old friend’s behalf.) A January 1866 commission acquitted Confederate general Hugh W. Mercer of charges that he murdered seven captured Union soldiers near Savannah in 1864. In June, a military commission trial in Raleigh of Major John H. Gee, the prison commandant at the smaller Salisbury camp in North Carolina, resulted in yet another acquittal. By some measures, conditions at Salisbury had been worse even than those at Andersonville; Union prisoners died faster there than at any other southern prison. Yet the commission vindicated Gee against charges of abusing and murdering prisoners in violation of the laws of war. After James Duncan was arrested in the Wirz commission courtroom, a commission in Savannah managed to convict him of manslaughter and violation of the laws of war for his gross abuse of Union prisoners while serving as the quartermaster at Andersonville. But the commission split on the sentence and could not agree on more than fifteen years’ imprisonment at hard labor. When Duncan escaped a year later, no one seems to have looked very hard for him. For the next thirty years he lived more or less openly with his wife in Pennsylvania.
As actual hostilities receded into the past, problems for the military commissions grew still more acute. The simple fact of the war having come to a close created difficulties. Grant insisted that Confederate soldiers covered by the surrender agreements of April 1865—including controversial partisans such as John Singleton Mosby—were immune from prosecution under the terms of their paroles. Holt maintained otherwise. His commissions had proceeded in the face of such objections in the past; Wirz’s lawyers had made the same argument. But now Grant successfully prevented the trial of Harvard Law School graduate Bradley T. Johnson, one of two Confederate brigadier generals in command at the burning of Chambersburg, Pennsylvania, in 1864. Johnson had also served as the commander of the grim prison camp at Salisbury, North Carolina, in the final months of the war. Nonetheless, Grant insisted that “the terms of the parole given by officers and soldiers . . . exempt them from trial for acts of legal warfare.” Moreover, when President Johnson announced the formal end of the insurrection in all states other than Texas on April 2, 1866 (Texas followed on August 20), many doubted that the authority of the military commissions would continue at all.
Most of all, the commissions seemed not to be targeting the leaders of the Confederacy, but to be scapegoating its minor players. Republican congressman James G. Blaine (later secretary of state under Presidents James Garfield and Chester Arthur) said at the time that prosecuting Wirz “seemed like skipping over the president, superintendant, and board of directors in a great railroad accident and hanging the brakeman on the rear car.” John Gee’s lawyers made the same objection, and the commission that tried him agreed; its report concluded that it could attach “no responsibility” to Gee “other than his weakness in retaining a position when unable to carry out the dictates of humanity.”
Yet for all the difficulties the commissions faced, Holt’s severe temperament and stubborn personality prevented him from understanding that public opinion was shifting the ground beneath his feet. Nowhere was the seismic shift clearer than in the debates that raged in the Congress over Reconstruction and the condition of the former slaves.
A Citizen of Indiana
FOR ALMOST A CENTURY, the laws of war had played a role in heated controversies around the question of slavery. In the months after Appomattox, those same laws occupied center stage in a new debate over how to incorporate 4 million freedpeople into the Union.
Since late May 1865, President Johnson had been appointing provisional governors for the rebel states and authorizing those who had been qualified to vote under prewar law to reorganize their states. Johnson urged that they ratify the Thirteenth Amendment abolishing slavery, but otherwise he allowed them to regulate the conditions of the freedpeople as they saw fit. White southern governments, presided over by the same men who had led their states into open rebellion, ratified the amendment while enacting new laws called Black Codes designed to reinstitute slavery in all but name.
When the Thirty-ninth Congress met for its first session in December 1865, the Republican majorities in the House and the Senate rejected Johnson’s plan, shut out the would-be representatives of the rebel states, and turned immediately to the business of preventing the white South from denying blacks their basic civil rights. Two bills introduced by Senator Lyman Trumbull of Illinois—what Senator Garret Davis of Kentucky called the “Siamese twins” of the Thirty-ninth Congress—quickly came to the fore. The first was an extension and enlargement of the wartime Freedmen’s Bureau Act, which had created a federal agency in the War Department for control of all subjects relating to refugees and freedpeople in the rebel states. The second was a bill to protect the civil rights of the freedpeople, including their right to make contracts, their right to sue, and their right to give ev
idence.
For all their centrality to the Republican agenda for 1866, the two bills at first shared a fundamental difficulty. The question confronting both bills was whether the federal government had the authority to enact them. The Constitution of 1787 had protected the states against federal power in all but a set of carefully enumerated federal domains. Once the states had ratified the Thirteenth Amendment to the Constitution prohibiting slavery and authorizing Congress to enact appropriate legislation to enforce its terms, the problem of federal authority to enact the civil rights bill seemed less acute. But the Freedman’s Bureau bill still seemed beyond any of the conventional powers of Congress. What license did the government have to try to govern day-to-day life in the states?
AT THE OUTSET of the Thirty-ninth Congress, radical firebrand Thaddeus Stevens of Pennsylvania and Jacob Howard of Michigan offered an answer that drew on the lessons of the past four years and harkened back to the arguments of Alexander Hamilton in the 1790s. The laws of war, they argued, represented a powerful source of authority in a constitutional system that had otherwise hedged and constrained the power of the federal government.
As Senator Howard put it in urging the establishment of a joint committee on Reconstruction in the opening days of the Thirty-ninth Congress, the “status of the rebel States” was simply that of “conquered communities, subjugated by the arms of the United States.” If that were so, the Congress had all the rights of a conquering nation as set out in the international laws of war. In the House, Stevens—who just four years before had berated Lincoln for acceding to the idea that the laws of war had any bearing at all on the conflict between the states—agreed and elaborated on the implications. “Unless the law of nations is a dead letter,” he announced on the floor of the House, the southern states were “in the condition of a foreign nation with whom we were at war.” Indeed, precisely because the Union had extended to the rebel armies the protections of the laws of war in battle, the southern states were now “subject to the absolute disposal of Congress.”
Moderate Republicans in Congress disliked the conquered province theory. It seemed to concede the rebels’ own wartime argument that the seceding states had left the Union and become an independent nation. Representative William Finck of Ohio complained that Stevens’s “views on this point coincide with those of the most rabid secessionists.” Congressman Henry Raymond of New York, the founder of the New York Times and a close ally of the new president, added that Stevens’s theory would preclude prosecuting any rebel, including Jefferson Davis, for treason. Indeed, as Representative William Niblack of Indiana jumped in to observe, the conquered territory theory would characterize the loyal Union men of the South as having been traitors when they sided with the Union against their home states.
Yet the most commonly cited alternative to the conquered territories theory was barely more appealing. A number of Republicans cited a clause in Article IV of the Constitution guaranteeing each state a republican form of government. The difficulty was explaining how the southern states as they existed in the winter of 1865–66 were somehow not republican governments under the Constitution. For more than seventy years, since at least the ratification of the Constitution in 1788, the federal government had proceeded as if slavery was perfectly compatible with republican government. Could it really be that in order to have a republican form of government a state now not only had to abolish slavery, but also had to adopt legal protections for the civil rights of those who had once been slaves? Many doubted the republican government guarantee could be read so liberally. (President Johnson had relied on the clause in endorsing his own far less ambitious restoration of white state governments.) Moreover, if the republican government clause could be construed so broadly, it threatened to make Article IV an ongoing warrant for open-ended federal government intervention into the affairs of the states. At least the conquered territory theory was limited to the South and to the context of the war. The republican guarantee approach threatened to undo entirely the allocation of powers between states and the federal government.
What a theoretical basis for Reconstruction needed to accomplish was to adopt the limitations of the conquered territories idea without seeming to concede that theory’s capitulation to the rebel idea that the states had indeed possessed a right to secede and had been independent nations of their own during the war.
The solution the Republican Congress soon hit upon was the very same idea that Lincoln had pursued in 1861 when he set up a blockade while refusing to concede that the South was an independent nation. The idea was that Congress could have it both ways. Sumner had developed the notion in the Congress as the “double” theory of the war. Lieber had followed it, too, by expressly reserving in General Orders No. 100 the right to prosecute rebels for treason. The Supreme Court had embraced it in The Prize Cases in 1863.
Richard Henry Dana, who had argued The Prize Cases for Lincoln, was among the first to apply the idea to the Reconstruction conundrum when he told a black suffrage meeting at Faneuil Hall in Boston in June 1865 that Congress could insist on black voting rights in the rebel states as a condition of representation in the Congress. Under the laws of war, Dana explained, the U.S. was a “conquering party” and could thus “hold the other in the grasp of war until it has secured whatever it has a right to acquire.” As in The Prize Cases, Dana contended that the law of war argument for congressional power did not require the Congress to see the rebel states as having been a foreign enemy. In civil wars, as Dana had put it in 1863, “the sovereign may exercise belligerent powers, as well as the powers of municipal sovereignty,” without contradiction.
Congress soon took up Dana’s “grasp of war” idea to sustain its postwar Reconstruction program. Charles Sumner, who had proposed a grab bag of theories for Congress’s authority to reconstruct the South, eulogized Abraham Lincoln in June 1865 by insisting that “the same national authority that destroyed Slavery must see that this other pretension is not permitted to survive.” There was, he thought, no doubt that “the authority which destroyed Slavery” was now “competent to the kindred duty” of guaranteeing the rights of the freedmen. In December, his fellow senator from Massachusetts, Henry Wilson, cited the same theory in proposing a civil rights bill that would make “null and void” any law of the rebel states establishing “any inequality of civil rights and immunities among the inhabitants” thereof. “The men who went into rebellion have been defeated in battle,” Wilson explained; “they have been conquered and subjugated; they are at the mercy of the Government of the United States to-day.” In late April 1866, when the Joint Committee on Reconstruction issued a plan for restoring the rebel states and ratifying the Fourteenth Amendment to the Constitution, the committee based its authority on principles crafted by Dana and carried forward by Sumner, Wilson, and others. “Conquered rebels,” stated the committee report, were “at the mercy of the conquerors.”
ANDREW JOHNSON HAD exercised war powers as the Union’s military governor in wartime Tennessee. In 1860, as a member of the Senate, he had been an early champion of the argument that would later be known as Thaddeus Stevens’s conquered territories theory of Reconstruction. Yet as president in 1865 and 1866, he turned into a sharp critic of bringing the law of war to the postwar South.
President Johnson’s program of speedy amnesty and state restoration was deeply at odds with the continuing military commissions of Joseph Holt and James Speed. Like the president, Holt and Speed were southerners by birth, with prewar connections to the Democratic Party. The war had changed the two men. Holt and Speed found themselves advocating for the freedpeople and for using the authority of military commissions to uphold their rights. But the war had not changed Andrew Johnson, at least not in the same way. Johnson chafed at the continuing war powers of the federal government. In February 1866, he ordered that no steps be taken toward the prosecution of Confederate naval officer Raphael Semmes for violations of a truce flag that occurred when the Union vessel Kearsarge sank his shi
p, the Alabama, off the coast of France in 1864. Holt had arrested Semmes for escaping from the sinking Alabama after flying a white flag of surrender. Semmes’s conduct undoubtedly violated the customs of truce flags, which forbade the use of white flags to enable escape. But Johnson thought that in arresting Semmes, Holt had taken his vindictiveness a step too far. Johnson told Secretary of the Navy Welles that he “wished to put no more in Holt’s control than was absolutely necessary,” and called Holt a “cruel and remorseless” man whose “tendencies and conclusions were very bloody.” Welles, for his part, thought Holt a “dupe of his own imaginings.”
Later in the same month, Johnson’s veto of the Freedmen’s Bureau bill set forth publicly the president’s fierce hostility to the persistence of military commissions. They were, he insisted, “arbitrary tribunals” inconsistent with the Constitution. On April 2, 1866, when the president declared the war over, he elaborated further. Martial law and military tribunals, he maintained, “are in time of peace dangerous to public liberty, incompatible with the individual rights of the citizens, contrary to the genius and spirit of our free institutions, and exhaustive of the national resources.”
Holt continued to press forward, but his efforts were increasingly clumsy. The prosecution of rebel captain Richard B. Winder (John Winder’s cousin) for crimes at Andersonville collapsed when Holt’s best witnesses failed to appear. In late March 1866, Holt confidently insisted that he was prepared to move forward with a prosecution by military commission of Jefferson Davis and Clement Clay for their complicity in the Lincoln assassination. But the hurdles to Holt’s military commission program were about to get much higher.
THE SUPREME COURT had lent its support to wartime military commissions in 1864 in the case of Clement Vallandigham; Justice Wayne had intimated the Court’s approval for the military trial of offenses “under the common law of war.” A year later, however, when a citizen of Indiana named Lambdin Milligan challenged his conviction by a military commission, circumstances had changed.
Lincoln's Code Page 40