After the riots, the governor bombarded Lincoln with acrimonious letters, arguing that the Empire State’s draft quotas were disproportionate compared to its population. Seymour also urged that no further conscription be undertaken until courts had ruled on the constitutionality of the Enrollment Act, and ominously hinted that violent resistance might otherwise be renewed.
Ignoring the tone of menace in Seymour’s appeal, Lincoln on August 7 tactfully refused to honor his request. The president, who told John Hay that he was “willing and anxious to have the matter before the Courts,” explained to Seymour that he did “not object to abide a decision of the United States Supreme Court, or of the judges thereof, on the constitutionality of the draft law,” and would “be willing to facilitate the obtaining of it.” But he insisted that he could “not consent to lose the time while it is being obtained.” (He could have pointed out that under the Constitution, laws were to be enforced until the courts ruled against them in response to complaints by persons affected by those laws.) The Confederate leader who had instituted a draft in 1862, “drives every able bodied man he can reach, into his ranks, very much as a butcher drives bullocks into a slaughter-pen. No time is wasted, no argument is used.” Thus the enemy “produces an army which will soon turn upon our now victorious soldiers already in the field, if they shall not be sustained by recruits.” To placate Seymour, Lincoln agreed to reduce the quotas in some New York districts.19
The governor, however, was not satisfied; he angrily insisted that the draft in his state was being conducted unfairly. In response, Lincoln again reduced some quotas in New York districts. When Seymour continued to behave uncooperatively, the president dispatched 10,000 troops to New York to maintain order while the draft was renewed there on August 19. To repeated protests that the administration failed to credit volunteers against the draft quotas properly, Lincoln patiently explained to Seymour that “[w]hen, for any cause, a fair credit is not given at one time, it should be given as soon thereafter as practicable. My purpose is to be just and fair; and yet to not lose time.”20 In fact, draft quotas in Democratic districts tended to be relatively high because earlier they had not furnished as many volunteers as Republican districts.
When the chairman of the Democratic National Committee, August Belmont, criticized Seymour’s letters to Lincoln, the governor intemperately replied: “In dealing with the Republican leaders it is necessary to bear in mind that they are coarse, cowardly, and brutal. They cannot understand generous purposes. They represent the worst phases of the Puritan character.”21 Seymour’s nerves were evidently frayed. Halleck, who thought Seymour acted like “a man stark mad,” wondered if the governor had not “inherited his father’s insanity.”22 John Hay called the governor “half lunatic half demagogue,” a “delicate soul without courage or honesty fallen on evil times” and whose “reason, never the most robust is giving way under its overwork.”23 According to a fellow New York Democrat, Seymour was “in a terrible state of nervous excitement” and in “danger of the loss of his wits.” He was “tormented both by the terrible reminiscence of the riots & by the constant assertions of the Press that he is concerned in a conspiracy of which the outbreak was a mismanaged portion.”24
When it was suggested that Lincoln name a special commission to investigate those conspiracy charges, he declined for fear of touching “a match to a barrel of gunpowder.” The administration was already sitting on two volcanoes, he said, one of which was “blazing away already, and the other will blaze away the moment we scrape a little loose dirt from the top of the crater. Better let the dirt alone,—at least for the present. One rebellion at a time is about as much as we can conveniently handle.”25
Seward remarked that the governor “is silly and short sighted. One fundamental principle of politics is to be always on the side of your country in a war.” The president was reminded of the Illinois politico Justin Butterfield, who “was asked at the beginning of the Mexican War if he were not opposed to it; he said, ‘no, I opposed one War [the War of 1812]. That was enough for me. I am now perpetually in favor of war, pestilence and famine.’ ”26
Seymour had acted badly, delivering speeches that helped create the atmosphere in which the draft riot occurred. His motive seemed political, for he did not object to the constitutionality of the draft until after the riots. He told Samuel J. Tilden that he wrote to Lincoln in August as part of an attempt at “making up a record.” The governor looked “for nothing but hostility” but said he should do his duty, demand his rights, “and let consequences take care of themselves.”27
The intemperate attacks of Seymour and other leading Democrats on Lincoln angered T. J. Barnett, a Washington insider, who told S. L. M. Barlow, a New York attorney and Democratic kingmaker, that “Lincoln is not a madman wholly. You are mistaken if you suppose that he is blind to the mischiefs of the Radicals. Does the appointment of Meade look that way? The business of the hour is to whip the Rebels or to give up our nationality, and … to settle with our incendiaries afterwards. … I am no parasite, … but I do have a high respect for Mr. Lincoln’s character and motives, as an honest man with sufficient discernment to read the plain ABC of the hornbook before him. He sees and knows that the North cannot afford peace and dismemberment. … The struggle within and without, with us, is for national existence—and this the President sees; and more and more; every day, he discerns the waning power of the Radicals; so much so, that if the opposition to his Administration had not been so precipitate and so organized as to render him, at one time, afraid to trust them with the conduct of the war, he would long ago have made a sensational demonstration in their jaws.” Barnett deplored Democrats who were “carping and yelling about dead issues, or the secondary one of constitutional law, which will keep well enough till we have the power to settle it. And this makes Mr. Lincoln timid of the very men with whom, on the absorbing question of the instant, his predispositions are. Why do not the respectable leaders of the Conservative Party present themselves here with half the energy which brings the Radicals to Washington? The answer is [that they are] selfish and unworthy. It only amounts to this, that they have failed … to drive him from the Chicago platform.” If Democrats would stop their reckless criticism of the administration, Lincoln would not be forced into the arms of the Radicals. Sensibly Barnett said “I want the conservatives, on the simple issue of the conduct of the war, of the probable terms of peace, and all such questions, to offer the President a fair chance to stand on a platform more moderate than [the one] that he occupies.”28 His sound advice fell on deaf ears.
As Barnett warned, Lincoln was moving ever closer to the Radicals. In August, one of their leaders, Michigan Senator Zachariah Chandler, expressed “little fear that the President will recede” on emancipation. Admiringly, he told Lyman Trumbull that Lincoln “is as stubborn as a mule when he gets his back up & it is up now on the Proclamation.” Seward and Weed might be “shaky,” but not Lincoln: “this peculiar trait of stubbornness (which annoyed us so much 18 months ago), is now our Salvation.”29
Seymour was not the only Northern leader protesting alleged unfairness in the administration of the draft. When a delegation from Chicago, led by Joseph Medill of the Tribune, called to file such a complaint, Lincoln patiently listened, then angrily turned on them with a scowling face. Bitterly he snapped: “Gentlemen, after Boston, Chicago has been the chief instrument in bringing this war on the country. The Northwest has opposed the South as New England has opposed the South. It is you who are largely responsible for making blood flow as it has. You called for war until we had it. You called for Emancipation, and I have given it to you. Whatever you have asked you have had. Now you come here begging to be let off from the call for men which I have made to carry out the war you have demanded. You ought to be ashamed of yourselves. I have a right to expect better things of you. Go home, and raise your 6,000 extra men. And you, Medill, you are acting like a coward. You and your ‘Tribune’ have had more influence than any paper in
the Northwest in making this war. You can influence great masses, and yet you cry to be spared at a moment when your cause is suffering. Go home and send us those men.” As Medill recalled, “I couldn’t say anything. It was the first time I ever was whipped, and I didn’t have an answer. We all got up and went out, and when the door closed one of my colleagues said: ‘Well, gentlemen, the old man is right. We ought to be ashamed of ourselves. Let us never say anything about this, but go home and raise the men.’ And we did—6,000 men—making 28,000 in the war from a city of 156,000.”30
Lincoln did not always react harshly to such complaints. When Indiana Governor Oliver P. Morton dispatched his assistant adjutant general, Austin Brown, to Washington to protest that his state had filled its aggregate quota, even though each district had not done so, the president received him cordially. After listening to Brown, he said: “As this case appears to me, Mr. Stanton has acted unjustly and inconsistently. The government cannot be partial in such grave matters to any one State more than another, and I will not permit it.” As instructed by Lincoln, Brown left his papers and returned to the White House later that day to discuss the matter in Stanton’s presence. When the war secretary adamantly refused to budge, Lincoln grew impatient and finally said: “it seems to me that Stanton will not authorize these credits as claimed by Indiana. I now say to you that I am thoroughly convinced that justice to Indiana demands that the fact that she has filled her quota must be put upon the record. Mr. Brown, if you will wait I will have an order prepared for my signature addressed to the Adjutant General of the Army, and when I sign it you will please deliver it.” Stanton abruptly said: “Good day, Mr. President,” and left with no further display of temper.31
Lincoln sometimes used humor to deflect protests about the draft. When a delegation from an Illinois village complained, he described to them a Maryland hamlet whose quota was one man. At a farmhouse there the enrolling officer solemnly asked an old woman to name every male creature on the premises. She provided several names, including one Billy Bray, who had the ill fortune to be selected for army service. When the provost marshal came to call for Mr. Bray, he was surprised to learn that Bray was a donkey. “So,” said Lincoln, “gentlemen, you may be the donkey of your town, and so escape. Therefore don’t distress yourselves by meeting trouble half way.”32
Lincoln was less jovial in dealing with state courts which seriously hindered the enforcement of the draft through habeas corpus proceedings. The problem became acute in Pennsylvania, where resistance to conscription was widespread, especially in the mining regions. By a 3–2 margin, that state’s Supreme Court ruled the Enrollment Act unconstitutional. At a cabinet meeting on September 14, 1863, the president, according to Attorney General Bates, “was greatly moved—more angry than I ever saw him” by the action of judges who had been releasing civilians arrested for obstructing conscription. He “declared that it was a formed plan of the democratic copperheads, deliberately acted out to defeat the Govt., and aid the enemy” and that “no honest man did or could believe that the State Judges have any such power.”33 He was, he added, “determined to put a stop to these factious and mischievous proceedings.” He even threatened to banish such jurists to Confederate lines, just as he had exiled Clement L. Vallandigham.34 Pounding the table, he emphatically declared: “I’ll not permit my officers to be arrested while in the discharge of their public duties.”35
Chase demurred, arguing that the writ of habeas corpus was “a most important safeguard of personal liberty” and that traditionally state courts were authorized to issue such writs “for persons detained as enlisted soldiers” and to discharge them. (Chase ignored the 1859 Supreme Court decision in Ableman v. Booth, which held that state courts could not prevent federal officers from carrying out their constitutional duties.) He counseled that any change in policy should be adopted only if “a clear case” could be made that the writ was being “abused with a criminal purpose of breaking up the Army.” Otherwise, he feared, “a civil war in the Free States would be inevitable.” Montgomery Blair concurred, as did John Palmer Usher. The president, however, “thought there was no doubt of the bad faith in which the Writ was now being used.”36
The next day, Lincoln read to the cabinet a proposed order authorizing provost marshals to ignore habeas corpus injunctions in draft-related cases. If necessary, force could be used to resist state court edicts. Chase agreed that the president had the power to suspend the writ under the 1863 Habeas Corpus Act; but, he argued, Lincoln’s order was too vague and might be challenged successfully. Better, he said, to issue a proclamation explicitly suspending the writ. Lincoln concurred, as did the rest of the cabinet. Seward then composed a document which, with slight modifications, was promulgated that day covering all cases involving the military arrest of deserters, draft resisters, spies, aiders and abettors of the Confederacy, prisoners of war, “or any other offense against the military or naval service.” It was officially announced on September 17, in the midst of the hotly contested Pennsylvania gubernatorial race. “The proclamation suspending the writ of Habeas corpus is a heavy blow but as it is right we can stand it,” Governor Curtin told the president.37
Around the same time, Lincoln wrote an angry message to draft protestors in which he explained the necessity for conscription and defended its constitutionality on the obvious grounds that Congress had the power to raise and support armies. (The U.S. Supreme Court did not rule on this question until 1918, when it upheld the Selective Service Act of 1917.) After pointing out that some men had been drafted in the Revolutionary War and the War of 1812, Lincoln asked rhetorically: “Wherein is the peculiar hardship now? Shall we shrink from the necessary means to maintain our free government, which our grand-fathers employed to establish it, and our own fathers have already employed once to maintain it? Are we degenerate? Has the manhood of our race run out?”38 Turning to the commutation and substitution provisions, he pointed out that the latter was a traditional feature of drafting armies and that the former, which was unprecedented, made it easier for poor men to avoid becoming conscripts: “The substitution of men is the provision if any, which favors the rich to the exclusion of the poor. But this being a provision in accordance with an old and well known practice, in the raising of armies, is not objected to. There would have been great objection if that provision had been omitted. And yet being in, the money provision really modifies the inequality which the other introduces. It allows men to escape the service, who are too poor to escape but for it. Without the money provision, competition among the more wealthy might, and probably would, raise the price of substitutes above three hundred dollars, thus leaving the man who could raise only three hundred dollars, no escape from personal service. True, by the law as it is, the man who can not raise so much as three hundred dollars, nor obtain a personal substitute for less, can not escape; but he can come quite as near escaping as he could if the money provision were not in the law. To put it another way, is an unobjectionable law which allows only the man to escape who can pay a thousand dollars, made objectionable by adding a provision that any one may escape who can pay the smaller sum of three hundred dollars? This is the exact difference at this point between the present law and all former draft laws. It is true that by this law a some what larger number will escape than could under a law allowing personal substitutes only; but each additional man thus escaping will be [a] poorer man than could have escaped by the law in the other form. The money provision enlarges the class of exempts from actual service simply by admitting poorer men into it. How, then can this money provision be a wrong to the poor man? The inequality complained of pertains in greater degree to the substitution of men, and is really modified and lessened by the money provision. The inequality could only be perfectly cured by sweeping both provisions away.”39
Lincoln did not publish this cogent analysis. He was right in pointing out that substitution was a traditional feature of drafting in both the United States and Europe. Congress was merely following preceden
t by incorporating it into the Enrollment Act. The commutation provision had been added to keep the price of substitutes from soaring, and to raise money for bounties. In practice, the draft did not discriminate significantly against the poor. Nationwide, only 46,000 men were actually drafted, a tiny percentage of the total Union army. Many men took advantage of the commutation provision. In 1863, 59 percent of those called up (and not exempt) paid the $300 fee, while only 9 percent hired substitutes. The following year Congress, persuaded that the army needed the men who had been buying their way out, and reacting to protests against a “concession to the man of means,” rescinded the commutation clause for all save conscientious objectors but retained substitution. As Lincoln predicted, the price of substitutes increased rapidly, making it more difficult for poorer men to escape service. Thus the repeal of commutation, not its enactment, represented class legislation favoring the well-to-do.
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