Nearly a decade earlier Lee first dealt with deserters at Jefferson Barracks. “They are no loss,” he said, condemning them as “dastardly & cowardly.” Then he actually preferred that they flee during recruitment and training rather than in the field, after the time and expense of making them soldiers.26 He did not get his wish then or now. Tens of thousands of Confederates, or about one in seven, would go absent without leave or desert during the war; especially in 1863 and afterward, as hopes for success ebbed, the desertion rate sometimes topped 25 percent. Lee made every effort to apprehend them, even detaching whole brigades from his army to pursue and bring them back, but once returned for justice, discipline and admonitory punishments were the only tools he had to discourage absenteeism.27
The maximum penalty for desertion was death, and a prevailing opinion was echoed by the officer of one Virginia deserter in 1863 who declared that “the only use that can be made of him is to shoot him as an example to others.”28 During the war Lee reviewed, approved, and passed on to Davis at least 245 such capital sentences, and almost certainly more.29 In a minimum of 65 of those cases Lee sent them to the president with mitigating factors, and Davis remitted at least 29 sentences, while Lee himself set aside another 43 for various reasons. Of the 173 cases that Lee approved without such recommendations, at least 53 men were shot, while the 120 remaining condemned men escaped the firing squad for reasons ranging from death by disease to bureaucratic inefficiency.30 In all, more than two-thirds of the sentences Lee approved were not carried out.
Part of the cause was that Lee viewed suspension of death sentences as a practical tool. Prior to Gettysburg he issued, with Davis’s approval, a blanket amnesty for virtually all outstanding offenders. Thereafter in a single special order early in April 1864 he saved 27 men condemned to execution for mitigating circumstances ranging from youth, previous good character and performance to repentance and irregularities in their trials.31 Yet he was also on the verge of the opening of spring campaigning, and needed every rifle on the line. Months later, in a higher position, and facing the coming of yet another, and surely final, campaign, he issued a blanket amnesty for all deserters who reported to their units within twenty days, making it clear that there would be no more amnesties in future.32 Lee was not a cruel man, however much he detested deserters, yet it is hardly surprising that a man who could sanction whipping slaves for trying to run away to freedom could also impose a firing squad on those who ran away from their duty to comrades and country. Just over 20 percent of death sentences imposed in his army were carried out, virtually double the percentage for the Union army as a whole, but then the rate of desertion in Lee’s army was almost ten times greater than in the Union army, where of 23,419 men convicted of desertion and 1,243 sentenced to death, only 140 went to execution.33 Since the beginning of the year, Lee enjoined his subordinates if at all possible not to execute the condemned on the Sabbath.34
Grant had just as much impatience with misbehavior as Lee. When officers straggled behind the army, he ordered them sent forward to be publicly stripped of their buttons and insignia and then handcuffed to await trials.35 Unlike Lee, however, Grant enjoyed periods of the war in which he did not have to deal with men sentenced to death for serious offenses. Prior to September 1862 he convened courts, but reviewing sentences and forwarding them to Washington was Halleck’s responsibility.36 Once he took over the Middle Military Division in October 1863, capital sentences were reviewed by the several army commanders under him and he rarely got involved, a procedure that continued now that he commanded all Union armies. Hence, unlike Lee, Grant’s headquarters really only gave careful oversight for about a year in 1862–1863, though he always had the option of weighing in if a particular case came to hand that he thought required action.
At least a dozen capital cases for desertion came before Grant for review, the first just weeks after Halleck left him in command in Mississippi in October 1862. Grant approved the finding and sent it on to Lincoln, who commuted the sentence.37 Like Lee, when possible Grant mitigated a sentence in light of previous good conduct in action, the condemned’s youth, or family hardship.38 He was also sensitive to technicalities in capital findings, but otherwise just like Lee he approved courts’ sentences and sent them on to the president, who almost always commuted.39 After February 1863 the law requiring capital sentences to be submitted to Lincoln no longer applied, though commanding officers were still free to suspend a sentence or to forward a case to the president, which Grant did in almost every instance.40 Sometimes he attached his own recommendation for clemency, or a commutation to imprisonment for the remainder of the war.41 However, when a soldier deserted in action he never recommended clemency, nor in any cases involving deserting to the enemy and taking arms against the Union.42 Neither did he interfere in such cases when Meade approved the sentence.43
During the Vicksburg campaign trials for desertion were held within each division. Grant found that sometimes death sentences were carried out without coming before him for approval, while in other cases that he had approved he was not always informed whether the sentences had been executed according to regulations.44 A stickler for military law, Grant preferred that the guilty go unpunished rather than be denied rigid adherence to code. Yet he seems to have understood that volunteers could not always be treated according to law. They were not soldiers, but civilians who had loaned themselves to the nation for the emergency, and humanity suggested some lenity. When more than 100 deserters came to Washington with the wounded from the first Spotsylvania fighting, Stanton wanted to send them back to Grant to be tried by drumhead court-martial and executed as an example.45 Knowing what a disincentive harsh justice could be to future enlistments, Grant did nothing in the matter. If a Northern civilian ran to the Confederacy to escape the draft and then enlisted with the rebels, Grant was still likely to recommend pardon, especially if the man was a teenager.46
One death sentence for mutiny actually came under Grant’s review after eight sergeants and corporals of the 11th Illinois refused further service under a despised lieutenant. All pled guilty and were sentenced to be shot, and he made no recommendation for mitigation when he forwarded the findings to Lincoln, who pardoned all eight. However, he did endorse a later petition for clemency, and all the sentences were commuted.47 Before the fall of Vicksburg a private broke his rifle on the ground, shouting something about “damned abolitionists,” then gave a cheer for Jefferson Davis and insulted his lieutenant when called to account. A court sentenced him to be shot, but Grant suspended the sentence on learning that the man had been drunk.48 However, when another mutinous inebriate added striking his officer to his crimes, Grant merely passed the death sentence on to Lincoln to settle.49 The murder of civilians or other soldiers never gained his recommendation for commutation.50 If the victim was a Confederate it made no difference. At Memphis early in 1863 a lieutenant of the 2d United States Cavalry took a bribe from a Confederate prisoner to help him escape, then led the man through the lines and shot and killed him. Grant approved a death sentence without question.51
The practical result was that remarkably few capital sentences were carried out in Grant’s immediate commands prior to his arrival in Virginia, and just thirty-one in Meade’s Army of the Potomac after Grant became general-in-chief.52 In fact, he occasionally acted as intermediary between Meade and Lincoln in brokering a reprieve.53 Occasionally a Confederate soldier came before a court martial, and if the charge was murder, Grant made no objection to capital sentences regardless of the allegiance of the victim. When a Georgia lieutenant stabbed and killed a citizen, Grant approved hanging the culprit.54 From his earliest command, Grant strove to show and encourage restraint toward Confederate citizens, and he carried that policy over into military justice. In the summer of 1863 when ten Missourians were caught for plundering and setting fires aboard a steamer, a military commission sentenced them to be hanged. Grant learned that the members of the commission had not been properly sworn in and so informed
the president, recommending that the sentences be nullified.55 When the crime was attempted murder or the murder of another citizen within his jurisdiction, Grant sought no mitigation in forwarding death sentences to Lincoln.56 Neither did he show interest in clemency for guerrillas and partisans not regularly enlisted in Confederate service, though again Lincoln often commuted the sentences that Grant approved.57 At the same time, however, Grant objected to executing Confederate soldiers in retaliation for murders committed by guerillas.58 He even showed some reluctance to execute convicted spies, and before the war’s end encouraged an arrangement whereby there should be no executions of such by either side until opposing authorities were notified and had time to offer explanations to justify a reprieve. In at least one case he and Lee exchanged correspondence in the successful effort to save a man’s life.59
In all, Grant reviewed at least thirty-seven capital sentences, less than one-sixth the number addressed by Lee, and all but five from 1862 to 1863 when Grant commanded the Army of the Tennessee. He spared the lives of almost half of the condemned on technicalities or recommendations for mercy. The remaining nineteen—just over half—he approved and forwarded to Lincoln, surely knowing that the president routinely pardoned or commuted more than three-fourths of all death sentences. Lincoln did so in a dozen of Grant’s cases, meaning only seven death sentences were confirmed, and possibly not all of those were carried out.60 Thus, while Lee sought leniency in just under one-fourth of the cases coming to him, Grant sought it in just over half, and while again almost 22 percent of the cases Lee approved ultimately resulted in execution, in Grant’s case it was 19 percent.
Grant was not more humane than Lee, though he seemed more reluctant to impose summary justice. Desertion never threatened national survival for the Union as it did for the Confederates. Moreover, deserters from the Army of the Potomac, now deep in enemy territory, had no friendly refuge to go to, and risked capture and a prisoner of war camp that could be more dangerous than the battlefield. Meanwhile, in Lee’s already outnumbered army, any absence for any reason was felt all the more. The deep pockets of dissent and even disloyalty among units from parts of North Carolina and southwest Virginia posed a trenchant hazard of spreading demoralization and defeatism throughout the rest of the army, and no one in the Confederate military could think of a better palliative than the example of execution. Lee approved more capital sentences because more came to him, but both commanders had similar attitudes toward summary justice, well recognizing the fine line between salutary example and pointless death.
The failure of Grant’s Petersburg attacks left his right flank based on the Appomattox River and his left slowly lengthening southward, matched by Lee’s gradually extending right flank. Lee took advantage of the relative stalemate to take yet another daring gamble—his last of the kind—to ease the pressure in his front by forcing Grant to shift focus elsewhere. He detached Early’s corps and Breckinridge to the Shenandoah Valley where they easily expelled a Federal raid and then launched a campaign down the valley to cross the Potomac into Maryland. They actually came in sight of Washington before its defenses forced them to withdraw, but the lightning raid forced Grant to detach a corps from his own front to protect his capital. It was exactly the sort of move that both generals conceived repeatedly, and usually with similar results. But Lee’s boldness in doing it now was punctuated by the fact that it left him barely 25,000 men in the defenses at Petersburg facing more than 65,000 under Grant and Meade.
Thus on July 30, Grant tried an expedient he had used against Vicksburg, exploding a mine that blew a 120-foot-wide hole in Lee’s works. Unfortunately, he compromised its effectiveness at the last minute by ordering Meade to send white troops into the anticipated breach, rather than the United States Colored Troops units originally assigned and trained for the operation. It was a pragmatic, political decision, for should the attack fail, it would play into the hands of Lincoln’s opponents who claimed that blacks could not be soldiers. The incompetence and cowardice of Union subordinates entrusted with leading the planned follow-up assault saved the Confederates. After that, for the rest of 1864 the two sides settled down to relative inactivity punctuated by bloody bursts of action. Grant sent Sheridan’s cavalry to the Shenandoah to deal with Early, which he did definitively. Through August Grant steadily extended his lines southeasterly, cutting the Weldon & Petersburg Railroad that linked Lee and Richmond to eastern North Carolina, and then that fall he went after the Southside Railroad west of the city, connecting it with Lynchburg, but A. P. Hill stopped him. After that cold weather halted virtually all operations.
Both armies were exhausted, and so were their commanders, especially Lee, whose health remained erratic throughout. Surely that had an impact on his conduct of the campaign, but more significant was the fact that this was a wholly new kind of warfare for him: standing on the defensive, leaving the initiative to the foe, reacting rather than acting. He adapted quickly, carefully considering Grant’s most likely options, and positing plans accordingly, though more than once he hesitated to commit himself fully to a course of action. As a result, he gave Grant a little extra time, which made the risks to himself all the greater, yet moving faster risked disaster should he react to the wrong enemy move. If Lee could not stop Grant anywhere until he found the ideal defensive line at Cold Harbor, still he made the Federals pay for every gain. In a way, the whole series of engagements from The Wilderness on were simultaneously victories and defeats for both generals, for neither got what he wanted. The frustration told on Lee, especially as his weakened and tiring army no longer reacted as once it had. With increasing frequency subordinates who failed to obey orders or stand their ground resolutely saw the angry glare in Lee’s eyes that one observer thought looked as if he “might penetrate a two-inch plank.”61
For his part, Grant planned brilliantly, but the old overconfidence, or perhaps just the effects of constant activity, made him unwontedly careless at times, and to his cost. His advance from the Rapidan River had been bloody to be sure, with about 60,000 total casualties, and critics in the Northern press and Congress castigated both him and Lincoln for the hard arithmetic of the campaign. Yet against an adversary as subtle and daring as Lee, there was no other way than what Grant had called “hard knocks.” He tried maneuvering at every opportunity, only to find that his opponent often divined his purpose barely in time to thwart him, or his own subordinates failed to meet his expectations. At Cold Harbor his only alternatives were to strike head-on, stay put and lose time, or retreat. Still, those losses paled in face of the 100,000 or more suffered for nothing over the previous three years as Lee repulsed one after another of Grant’s predecessors and held his ground. Now at a little more than half that terrible cost, and in a fraction of the time, Grant had virtually taken Lee and the Army of Northern Virginia out of the war as an open field threat. Not surprisingly, Confederate editors dubbed him “Grant, the Butcher” and “Butcher of the Wilderness.”62 However, the Democratic press in the North took up the sobriquet “Butcher Grant” as a weapon to use against Lincoln, and did more to spread it than even the enemy papers.63 Yet the outcry over losses sustained followed strictly party lines, and the majority of the influence-making journals stood behind him, as did the voters when they reelected Lincoln that fall.
Grant’s response to the critics was that “the Rebellion must be overcome, if overcome at all, by force; its resources destroyed; its fighting material obliterated, before peace could be obtained.” In his own view, there had been but two failures: the abortive assault on Petersburg immediately after crossing the James and the botched attack following the mine explosion.64 His own hasty planning and, for a change, imprecise orders contributed to the first; his last-minute changes had a hand in the second, though the bulk of the fault rested squarely with Burnside, who soon resigned. Grant understood the cruel arithmetic involved. Both sides were enduring terrible casualties, but Lee had nowhere to go for more men. “We loose to,” he told a friend, “but
can replace our losses.”65
Despite the long months of developing siege, neither general had much opportunity for relaxation. Lee made time to go to church for the first time in weeks the day after Grant’s last June assault, and occasionally thereafter. But most of the time when he was not at headquarters attending to business he was out riding along his lines, making corrections in positions, giving instructions for enhancing earthworks, or else in Richmond lobbying Davis, the War Department, and even congressmen for more men and supplies. By the fall he felt stiff and uncomfortable on horseback, and some days the rides took him more than thirty miles, but it had to be done.66 Mary chided him that he exposed himself too much, and should forego his field tent for the greater comfort of a house. “It is from no desire of exposure or hazard that I live in a tent,” he told her, “but from necessity.” He felt his failing strength, and knew he could get a room or even a house, but that would separate him from his staff and delay business. He tried to shield himself from what he called “exciting causes,” but asked her “what care can a man give to himself in a time of war?”67 At least he did try to get a new tent in July. The one he used had been issued three years earlier, and he told the quartermaster general that it “has been my principal habitation ever since wherever I have been.” The last two months in particular had ravaged its roof and walls, and now it scarcely afforded dry shelter. “I doubt whether it will hold together longer than the current summer months,” he testified, and hoped a new one could be made for him that would close completely in front, with side walls all round, and “sufficiently capacious” for himself and others to meet inside.68 In less than a week Richmond sent him a new one, but Lee complained now that it was too large for easy movement. More to the point, ever conscious of setting an example, he did not like the luxury of a capacious tent after he had confined his own staff officers to much smaller ones.69
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