Black troops were yet another critical element of waging total war against the Confederacy. As with so many other controversial issues, Lincoln developed this policy through a series of palatable political steps.25 He initiated the policy on August 25, 1862, when he authorized War Secretary Stanton to set up the Bureau of Colored Troops in his department and recruit the first five-thousand-man brigade. The outpouring of black volunteers caused Stanton to authorize more regiments. By the war’s end, 186,017 blacks had served in the army, or one in ten of all troops, and about 10,000 in the navy.26
Lincoln’s decision to raise black regiments hardly met with universal approval in the North. The president’s biggest worry was the effect on army officers and soldiers who angrily insisted that they fought to restore the United States, not to liberate slaves. To this, Lincoln made a typically pointed and wise response:
You say you will not fight to free Negroes. Some of them seem willing to fight for you; but no matter. Fight you, then, exclusively to save the Union. I issued the proclamation on purpose to aid you in saving the Union. . . . I thought that in your struggle for the Union, to whatever extent the Negroes should cease helping the enemy, to that extent it weakened the enemy in his resistance to you. Do you think differently? I thought that whatever Negroes can be got to do as soldiers leaves just so much less for white soldiers to do in saving the Union.
He warned that opposing black troops could have unfortunate future consequences: “There will be some black men who remember that, with silent tongue and clenched teeth and steady eye and poised bayonet, they have helped mankind on to this great consummation while, I fear, there will be some white ones unable to forget that with malignant heart and deceitful speech, they have strove to hinder it.”27
The question inevitably arose over what those blacks were fighting for. Was it simply slavery’s abolition or something more? What rights, if any, would emancipated blacks enjoy? To those who would deny freedom or any other benefits to black soldiers, Lincoln countered that “Negroes, like other people, act upon motives. Why should they do anything for us if we will do nothing for them? If they stake their lives for us they must be prompted by the strongest motive, even the promise of freedom. And the promise, being made, must be kept.”28 To renege on this promise would devastate the Union’s war effort: “All recruiting of colored men would instantly cease, and all colored men in our service would instantly desert us. And rightfully, too. Why should they give their lives for us, with full notice of our purpose to betray them? . . . I should be damned in time and eternity for so doing. The world shall know that I will keep my faith to friends and enemies, come what may.”29 Lincoln eventually called for more than just freedom for black soldiers. He advocated that soldiers and “intelligent blacks” should enjoy the right to vote.
Most whites believed that blacks could never match them in courage, skills, and discipline. Black troops disproved that in every battle they fought, starting with an attack on the rebel lines at Port Hudson on May 27, 1863. Nonetheless, at first black privates got only ten dollars a month, compared to thirteen dollars for white privates.
This discrimination led to the first meeting between Frederick Douglass and Abraham Lincoln on August 10, 1863. After listening carefully to Douglass’s argument that black and white troops should be paid the same and that black officers should command black troops, Lincoln promised that the discrimination would one day end and asked for patience until then. He sent Douglass to make his case to War Secretary Stanton.30 Blacks began receiving the same pay as whites from June 1864, although African Americans did not begin to receive officer commissions until after the war.
Black troops faced the possibility of being murdered or enslaved if they were captured. Confederate officials openly declared their intention to commit these crimes to deter the Union from using black troops. The rebel Congress decreed that officers of black regiments would “if captured be put to the death or otherwise punished.” Blacks themselves would be treated according to the laws of the state in which they were captured; in all states that meant they could be flogged and reenslaved and in some that they could be executed. Regardless, blacks would not be considered prisoners of war subject to fair treatment and exchange. This was the official policy. Many rebel civilian and military leaders angrily declared no quarter for any black regiments. As for “white officers serving with negro troops,” Confederate secretary of war James Seddon asserted that “we ought never to be inconvenienced by such prisoners.”31
Upon learning of those threats, Lincoln proclaimed on July 30, 1863, that “for every soldier of the United States killed in violation of the laws of war, a rebel soldier shall be executed; and for every one enslaved by the enemy, . . . a rebel soldier shall be placed at hard labor on the public works. . . . If the enemy shall sell or enslave anyone because of his color, the offense shall be punished by retaliation upon the enemy’s prisoners.”32
Lincoln’s evocation of a biblical eye for an eye justice was straightforward enough and ideally would deter future Confederate war crimes. Unfortunately, passion rather than reason drives most people, especially in wartime. Lincoln’s policy did not deter rebel troops from venting their murderous hatreds. In early 1864 alone, Confederates massacred black troops who surrendered at Olustee, Florida; Fort Pillow, Tennessee; Poison Springs, Arkansas; and Plymouth, North Carolina.
Lincoln convened his cabinet to debate whether to fulfill his pledge to retaliate for such crimes, and if so, how. He admitted that his warning had been a bluff: “The difficulty is not in stating the principle, but in practically applying it.” As a humanitarian and an American committed to upholding the Constitution, the idea of placing innocent prisoners picked at random before firing squads sickened him. He insisted that “blood cannot restore blood, and government should not act for revenge.” Lincoln instructed Secretary of War Stanton to write President Davis that the U.S. government condemned the massacres and warn that an equivalent number of rebel soldiers “shall be treated other than according to the laws of war” if Davis did not renounce future such massacres by July 1, 1864. Should Davis not comply, what then? Lincoln and his cabinet agreed that military tribunals would try any captured suspects charged with committing war crimes. The United States also would end any prisoner exchanges unless the rebel government agreed that it would treat blacks equally with whites. Meanwhile Davis called Lincoln’s bluff; he and his cabinet angrily rejected any notion of equality.33
Lee suggested a prisoner exchange to Grant in early October 1864. Grant agreed, provided that black troops would be released with white troops. Lee curtly replied that “negroes belonging to our citizens are not considered subjects of exchange and were not included in my proposition.” Grant expressed his regret at that policy, noting that the American government “is bound to secure to all persons received into her armies the rights due to soldiers.”34 And there the possibility died of releasing thousands of prisoners from wretched conditions that emaciated all and killed many.
Crushing the Confederacy posed a terrible legal and moral dilemma for Lincoln.35 Should a president violate the Constitution in order to save it? Or, as he rhetorically put it, “Must a government, of necessity, be too strong for the liberties of its own people or too weak to maintain its own existence?”36 He argued that the Constitution fully empowered him to do what was necessary to preserve it: “Certain proceedings are constitutional when, in cases of rebellion or invasion, the public safety requires them, which would not be constitutional when, in the absence of rebellion or invasion, the public safety does not require them.”37 He insisted that “as commander-in-chief of the army and navy in time of war . . . I have a right to take any measure which may best subdue the enemy.” What’s more, as president “I may in an emergency do things on military grounds that cannot be done constitutionally by Congress.”38 He typically bolstered his legal case with moral arguments: “Was it possible to lose the nation and yet preserve the Constitution? By general law life and limb must b
e protected, yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb.” In other words, “Was it possible to lose the nation, and yet preserve the Constitution?”39 Indeed, he anticipated a time when “I shall be blamed for having made too few arrests rather than too many.”40 Yet, having asserted all that, he acknowledged limits to a president’s wartime powers: “Nothing justifies the suspending of the civil by the military authority but military necessity, and of the existence of that necessity the military commander, and not a popular vote, is to decide.”41
Citing military necessity, Lincoln suspended habeas corpus in parts of the country on April 19, 1861, August 8 and September 24, 1862, and September 15, 1863, and later restored it after law and order again prevailed. Congressional majorities approved these acts. John Sherman, an Ohio senator and William Tecumseh’s brother, captured the prevailing sentiment: “I approve of the action of the President. . . . He did precisely what I would have done if I had been in his place—no more, no less, but I cannot . . . declare that what he did do was . . . strictly legal, and in consonance with the . . . constitution.”42
The Supreme Court concurred. In the Prize case of 1863, the justices ruled by five to four that Lincoln’s actions from April 15 to July 4, 1861, when Congress was out of session, were constitutional. While reaffirming that only Congress can start a war, the majority argued that a president can certainly fight a war started by others: “Whether the President in fulfilling his duties as Commander in Chief in suppressing an insurrection has met with such armed hostile resistance and a civil war is a question to be settled by him.”43
The justices offered a more nuanced view in their 1866 Ex Parte Milligan decision. The case involved Lambdin Milligan, an Indiana civilian who was convicted of treason by a military tribunal in 1864. The majority overruled Milligan’s conviction on the grounds that “martial law can never exist when the courts are open, and in the proper and unobstructed exercise of their jurisdiction.” Thus Milligan should have been tried in an existing civilian court rather than a military court. The justices also pointed out that the power to suspend habeas corpus is given to Congress, not the president. They concluded that, “as necessity creates the rule, so it limits its duration.”44 So even where extraordinary circumstances render civilian courts abeyant, the civilian law must be reintroduced as soon as the emergency ends.
Just how many civilians were arrested under the Lincoln administration’s suspension of habeas corpus? Historian Mark Neely found at least 866 arrests from the war’s beginning until February 15, 1862, and “the lowest estimate is 13,535 arrests” from then to the war’s end. That works out to 1 arrest for every 1,563 northerners. Neely notes that February 15 marked the date when authority for the arrests shifted from the State Department to the War Department. The army conducted 4,271 trials, of which 1,940, or 45.4 percent, took place in the Border States, 1,339, or 31.4 percent, in occupied regions of the eleven rebel states, and 212, or 5.0 percent, in the northern states.45 How much these arrests, trials, convictions, and prison terms actually suppressed or deterred enemy subversion or outright rebellion is impossible to say.
History is replete with instances of individuals emerging from relative obscurity to shift its course. This happened in November 1862, when Dr. Francis Lieber, a law professor, proposed to Gen. Henry Halleck that the government “issue a set of rules and definitions . . . for . . . the Law and usages of War,” to be drafted by a three-man committee of experts.46 Halleck shared the idea with Lincoln, who enthusiastically approved and appointed Lieber to chair the committee. Lieber was eminently qualified for the task. He was born in Prussia and as a young man fought in the army against Napoleon, then later in the Greek war of independence. He fled to exile in the United States in 1827 after a government crackdown on liberal activists like himself. In New York City he studied and from 1857 taught law at Columbia College.
Lincoln approved what became known as the Lieber Code and issued it on April 24, 1863. The Lieber Code significantly developed international law related to war. It became the foundation for the 1868 St. Petersburg Declaration, the 1874 Brussels Declaration, and the Hague Regulations on the Laws and Customs of War on Land of 1899 and 1907.
“Military necessity” is the Lieber Code’s core principle. Soldiers from the highest general to the lowest private can only commit acts “that are indispensable for securing the ends of war.” Lincoln himself typically expressed this concept with succinct eloquence: “The true rule for the military is to seize such property as is needed for Military uses and reasons, and leave the rest alone.” This would rule out the gratuitous or vengeful destruction or confiscation of property and infliction of suffering on soldiers and civilians alike.47
And what should happen to those who violate the law? The question of how to treat war criminals can be problematic under any circumstances, especially when fighting against peoples who lack a formal legal code, let alone being acquainted with the international law of war. One way is to assert the universally understood principle of “an eye for an eye.” However, this “solution” can be troubling for people living in a liberal democracy and committed to upholding the rule of law upon which it is grounded.
A president literally has the power of life and death in his hands, and not just in wartime. The power to pardon is also the power to condemn. Every president receives pleas from those convicted for crimes. During the Civil War, the official number of Union soldiers executed was 272, among whom 141 were deserters and 22 were rapists. That number would have been far higher had not Lincoln carefully reviewed at least 661 cases and issued 570 pardons or reduced sentences. The exact figure may never be known, as the records are incomplete. His most far-reaching act of clemency was to issue on March 10, 1863, a general amnesty for all deserters who returned to their regiments by April 1. Although Lincoln’s mercy is legendary, his search for justice was even more powerful. Among one batch of fifty-nine convictions of officers in late 1863, he actually imposed tougher penalties on fourteen.48
Women played a low-profile but important part in the Union cause. Over two hundred thousand women volunteered to act as nurses, raise money, or produce items needed by the troops. The Sanitary Commission, led by Clara Barton and Dorothea Dix, was the most important institution that cared for the sick and wounded. Of the twenty thousand women who served as nurses, three thousand were army nurses. Thousands of other women worked elsewhere in the federal bureaucracy, mostly in clerical positions. Over one hundred thousand women filled positions in the private sector, usually in a post traditionally occupied by a man. The proportion of factory jobs held by women rose from one-quarter to one-third during the war.49
Meanwhile the First Lady persisted in stirring up gossip and controversy. Mary Lincoln provoked the latest criticism when she invited her sister Emilie Todd Helm to live in the White House after Emilie’s husband, Confederate general Benjamin Helm, was killed in battle. Gen. Dan Sickles spoke for countless appalled Americans when he advised Lincoln not to “have that rebel in your house.” That prompted a steely reply from Lincoln: “General Sickles, my wife and I are in the habit of choosing our own guests. We do not need from our friends either advice or assistance in the matter.”50
More than protecting his home’s privacy inspired Lincoln’s response. Emilie’s cheerful presence steadily pulled Mary from the deep depression that she had suffered since Tad died. Eventually Mary shed her mourning clothes and expressed ever more the vivacious side of her nature. That in turn alleviated some of the crushing emotional burdens that her husband was forced to carry.
Lincoln received a stunning message from Horace Greeley, the New York Tribune’s editor, on July 7. A southern peace delegation was on the Canadian side of Niagara Falls and was interested in talks. The envoys included former Mississippi congressman Jacob Thompson, former senator Clement Clay, and University of Virginia professor James Holcombe. The president shared the news with his cabinet and they discussed the legal question
of whether talking with the rebels constituted recognizing their government. Lincoln finally decided to send Greeley and his secretary John Hay to the envoys and determine whether they had official credentials from Jefferson Davis. If the envoys were legitimate, Hay would hand them a letter from Lincoln in which he wrote that he would consider “any proposition which embraces the restoration of peace, the integrity of the whole Union, and the abandonment of slavery.”51 If the envoys accepted those preconditions then Hay and Greeley were to conduct them to Washington to write up a peace treaty.
In handling the envoys that way Lincoln once again displayed his profound understanding of power. He had two interests that might either clash with or complement each other depending on how he asserted them. He genuinely wanted peace on the terms that he presented. He also needed to win reelection and his party had to retain its congressional majorities. Ever more people were sick of the war and would welcome any excuse to end it as soon as possible. The rebel peace envoys offered just such a chance. If Lincoln dismissed the opportunity, he would push countless voters into Democratic Party ranks. Yet peace at any price was unacceptable. So he offered terms that he knew the rebels would reject, and in doing so he heaped upon the Confederacy the terrible onus of carrying on the war. Lincoln compounded this stigma by publicly releasing a recent declaration made by Davis to two northern journalists who visited the Confederate White House: “The war . . . must go on till the last man of this generation falls in his tracks . . . unless you acknowledge our right to self-government. We are not fighting for slavery. We are fighting for independence—and that or extermination we will have.”52
The Age of Lincoln and the Art of American Power, 1848-1876 Page 24