Upon the Altar of the Nation

by Harry S. Stout

  However much his Republican citizens clamored for Confederate blood and civilian suffering, Lincoln did not easily come to total war. It was he, after all, who would have to answer for it both to history and to God. But decide he did, and in terms far harsher than the “Christian civilization” McClellan argued for in his Harrison’s Landing letter.

  On this issue, Lincoln would differ significantly from the Republican theologian Charles Hodge. In Hodge’s widely circulated moral reflection on the war, he turned from questions of just cause ( jus ad bellum) to just conduct ( jus in hello), and here he remained a West Point Christian. From credible sources, Hodge had learned “that men and women [in the North], professing to be Christians, have been so demoralized or demented by passion, as to maintain that it would be just to visit the South with the fate of the Canaanites.” That would be wrong, Hodge asserted, a “sin, a violation of the law of God, for our government to disregard any of the established laws and usages of modern warfare in its efforts to suppress the rebellion.”

  In time of civilized war, wrote Hodge, “the lives of non-combatants [must] be regarded as sacred.” Besides protecting the lives of noncombatants, “it is one of the humane regulations of modern warfare that private property is entitled to protection. Robbery or marauding, on the part of soldiers, is punishable with death.” Hodge conceded that sometimes food for men and horses must be taken in enemy territory, but that was a far cry from “the doctrine that the private property of non-combatants is a lawful prize in war.”17

  Lincoln did not agree with Hodge nor with McClellan and the Democratic Party, which was even more adamant on limiting the scope and conduct of the war. His sense of just means was considerably wider and grew more so with every passing battle. But unlike Hodge’s vengeful countrymen, his motives were more pragmatic and “prudential” than blood revenge. 18 Almost alone among his American contemporaries, Lincoln evidenced an almost otherworldly capacity to prescribe hard actions “with malice towards none.

  Lincoln’s strategy worked nearly perfectly. Far more than the Confiscation Act, Lincoln’s proclamation encouraged black enlistments in the army and freed all slaves in secessionist states, those of secessionists and loyalists alike. And with emancipation, a policy of total war enjoyed an unprecedented moral stature, allowing the Northern public to fasten on the “good” of emancipation without ever inquiring into the “bad” of unjust conduct in a total war.19 From the very inception of the war, Northern clergy had focused their moral commentary on the sin of slavery to the virtual exclusion of all other moral considerations—including jus in hello and (with prominent exceptions) Northern racism. Emancipation merely reinforced their unrestrained cheers and unacknowledged silences. On the subject of slavery and emancipation, the clergy insisted loudly through all media that it was their right and moral obligation to “preach politics” in a cause so just that the world would be transformed. On the subjects of jus in bello and total war, they retreated to the “spirituality” of the church and said nothing.20

  A group of “Contrabands” (former slaves) standing outside a shanty. Many would go on to work actively for the Union both on the battlefront and behind the scenes.

  Behind this moral silence, which featured the clergy but also included intellectuals and artists, lay a disturbing fact. The war was steadily becoming its own end. Daily battlefield accounts, graphic in detail, accompanied by lithographs, music, art, drama, and, after Antietam, photography, instilled an irrational, but insatiable, fascination with war that fed off its own energy. Many Northerners recognized a revolution brought on by the Emancipation Proclamation that highlighted emancipation as the true cause of the war and its intended effect. That revolution, from military campaign to moral “crusade,” meant new limits would be implemented in the execution of the war.

  For their part, the Confederates were more than prepared to respond in kind. Nobody could avoid the subject of war as a focus crowding into all aspects of life, religious no less than social. This obsession had its roots less in moral introspection than in sheer preoccupation with battles and destruction.

  Emancipation put to final rest any thoughts of a negotiated peace by which the South would be permitted to leave the Union or, conversely, to return with slaves and existing leaders intact. As long as Lincoln and the Republican Party were in power, the Union would stand and slavery be put on notice. With slavery—not Union—as the focal point, commentators could accept the escalation of war virtually without restraint.

  From the issuance of Lincoln’s Emancipation Proclamation on, Americans in the North and the South would not look back to restrained codes or charity. Total war, with emancipation as the inner accelerator, meant articulating a war ethic in which civilian suffering could be presumed and morally justified. By the spring of 1863 Lincoln’s legal scholar, Francis Lieber, would complete a rationale for total war that would stand as a new American foreign poliCy.21 If enough attention could be paid to emancipation, however minimal the actuality might be, no one would ask hard questions about the moral implications of either a turn to total war or enduring white supremacy. The slippery slope began.

  Northern thanksgiving sermons happily endorsed the new terms of war. In his thanksgiving “discourse” denouncing Northern racism, Moses Smith also picked up the Bushnellian theme of a Christian (Puritan) America. Despite pretensions to being a “Christian nation,” the Lincoln government “[has] resounded with sneers against any law higher than the Constitution.... [O]ur honored President, with all his praise-worthy efforts for the oppressed, and with all his appeals to praying people for God’s direction and assistance, not so much as recognizes the idea, that God and righteousness have anything to do with the deliverance of 4,000,000 bondsmen.” But happily, Smith concluded, Lincoln’s Emancipation Proclamation set the nation on a reforming course and established that “our nation is not forsaken.” With that proclamation, victory could be assured.22

  Philadelphia Presbyterian Albert Barnes agreed with Smith. It was not enough to restore the Constitution: “I believe that mistakes were made in framing that constitution... there are evils contained in the constitution which it is possible still to remedy and remove.”23 Chief of these evils was, of course, slavery, and if coercive emancipation was the only way to change the Constitution, then, Barnes concluded, so be it.

  In the Dutch Reformed Church of Stapleton, New York, Thomas H. Skinner undertook to examine the nation “from the stand-point of Eternal Providence,” and, in effect, speak for God’s global intentions in the war. Clearly God was only on the side of the North, and the South was “simply demonic.”24 America, Skinner concluded, and not Christ’s return to earth, would lead the world into millennial glory.

  In such nationalistic millennialism, the historian James Moorhead discerns a “dangerous substrate” that identifies Providence with “the idealistic conception of American destiny.” Such identification minimizes moral restraints or adherence to international standards of war common to all civilized nations. Instead, it can legitimate excesses and raw terrorism. By linking emancipation and the “crusade” against slavery to total war and a “crusade” against the Confederacy, Lincoln’s administration watered the seeds of an American-led Christian imperialism that was not without costs in later American history.25

  On December 1, 1862, President Lincoln delivered his State of the Union message to the Thirty-seventh Congress. The news for the Union was good. Europe remained out of the war and refused to recognize the Confederacy. Despite the enormous costs of war, Federal receipts were satisfactory and “the public credit has been fully maintained.” Bloody Indian wars might be avoided through forced relocation of warring tribes. If colonization would not work with African Americans, forced relocation and confinement on Federal “reservations” would, Lincoln asserted, work for Native Americans.26 Most important, a way eventually to abolish slavery was found.

  With the moral good of emancipation on the floor, Lincoln turned to national ends. Questions of just c
onduct and habeas corpus were not raised. “Honor” would be invoked, but not the honor of the West Point Code. Only emancipation was referenced as the tag for a stirring conclusion that would introduce phrases for an American scripture:Fellow-citizens, we cannot escape history. We of this Congress and this administration, will be remembered in spite of ourselves.... The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation....We know how to save the Union.... We—even we here—hold the power, and bear the responsibility. In giving freedom to the slave, we assure freedom to the free—honorable alike in what we give, and what we preserve. We shall nobly save, or meanly lose, the last best, hope of earth. Other means may succeed; this could not fail. The way is plain, peaceful, generous, just—a way which, if followed, the world will forever applaud, and God must forever bless.27

  Total war was regrettable, but not as regrettable as sacrificing the world’s last best hope. When white Unionists in New Orleans protested Union policies of emancipating slaves in occupied territories, Lincoln responded: “I am a patient man—always willing to forgive on the Christian terms of repentance; and also to give ample time for repentance. Still, I must save the government if possible.... [And] it may as well be understood, once for all, that I shall not surrender this game leaving any available card unplayed.”28 Soon enough all would learn that Lincoln meant exactly what he said.

  CHAPTER 20

  FREDERICKSBURG: “SO FOOLHARDY AN ADVENTURE”

  Lincoln’s decision to wage total war meant that he was prepared to obliterate prior rules and that, in turn, meant that more and more attention inevitably had to be given over to the question of noncombatant immunity. Lincoln’s executive order permitting commanders “to seize and use any property, real or personal” that would further the war effort, issued on July 22, 1862, together with General Orders Nos. 5,7, II, and 13, allowed the Army of the Potomac to “subsist upon the country.” The army could also hold rebel civilians responsible for attacks on army personnel in their region. Any civilian who refused to swear an oath of allegiance to the United States—in essence every white Southerner—would be liable to be turned out of their homes and sent within rebel lines.

  With these orders, issued at the highest level, the war now descended directly upon the homes, farms, and lives of Southern civilians. Clearly any war on civilian populations rendered questions of just conduct acute in the minds of those responsible for setting orders in motion and the soldiers who would carry them out. Where were the answers? Incredibly, there existed no English-language handbook on the code of war. When asked how soldiers had been guided in the Mexican War, Winfield Scott had to concede that they operated only from an “unwritten code.” In December 1862, with emancipation and total war looming, Lincoln commissioned a board to draw up, for the first time, a code of just conduct in time of war. The only civilian on the board, Francis Lieber, turned out to be the chief architect and author of the resulting code.

  Lieber had personal and intellectual interests in the project that made him ideally suited for the task at hand. Despite spending sixteen years teaching in South Carolina before moving north to the Columbia Law faculty, Lieber had no sympathy with either secession or slavery. His experience as a young German soldier fighting at Waterloo convinced him that states required strong central governments to rein in secessionist impulses. In his view, the Union must be preserved. But also weighing on his personal positions was the fact that all three of his sons were fighting in the Civil War. Hamilton Lieber fought for the Union and lost an arm at the battle of Fort Donelson. Norman Lieber, also a Union soldier, fought against his rebel brother, Oscar Lieber, at the battle of Williamsburg (May 1862), where Oscar was killed, cursing his father and the North as he lay dying.

  Lieber completed his work in April 1863, noting in a letter to Henry Halleck, “I had no guide, no groundwork no textbook.... Usage, history, reason, and conscientiousness, and a sincere love of truth, justice, and civilization have been my guides.” Lincoln approved the document immediately and distributed it to his commanders as General Orders No. 100.

  The manifest object of Lieber’s Code was to limit the abuses of total war described generally as “savagery.” The reason for laws of war, Lieber recognized, was moral: “Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.” Offenses of “wanton violence against persons in the invaded country,” wrote Lieber, “all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense.” While conceding that “the citizen or native of a hostile country is thus an enemy ... and as such is subjected to the hardships of war,” it was also advisable that “the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.”1

  But all this attempt at humane treatment was undermined by the higher duty to win the struggle no matter what the cost. By identifying the national cause with the war and valuing the survival of the nation over all competing considerations, anything could ultimately be justified under the rubric of what Lieber termed “military necessity”:Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war.... Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war.... [I]t allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy, of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the Army.

  What Lieber contributed to restraint under the duty of humane treatment and protection of private life on the one hand, he removed with the other as “military necessity” Lieber’s Code effectively gave commanders a blank check for operations in the field. As the ethicist James Turner Johnson recognizes: “Where the difference between private and public is hard to discern, or where the aims of war are so broadly defined as to do away with that difference, then it is difficult to see how Lieber’s argument for protection of noncombatants can have any restraining force at all.”2 Lincoln could not have asked for any more.

  “Military necessity” supplied the moral cloak permitting war on civilian populations. In effect, civilians were transformed from “noncombatants” to “the enemy” of the nation state. The code protected American officers and soldiers from virtually any reprisal. While a few soldiers were tried and executed for rape during the war, there would be no trials for destruction of civilian property or lives.3

  Union generals showed scant interest in the code and soldiers none. Confederates probably studied it more closely for its vagueness in preventing “retaliation” or revenge on enemies and its wide-open definition of “military necessity” that, if necessary enough, could justify just about anything. But Lieber’s Code gave Lincoln and his generals what they needed as they contemplated a new war that would deliberately invade civilian lives and properties.

  Besides a liberal code of military conduct, Lincoln desperately needed his own Lee or Jackson to win major battles in the East, where voters and the media were concentrated. Lieber’s Code would mean little if there were no commanders willing and able to implement crushing overland campaigns with strategic sensibilities. Already Democrats had seized on unprecedented carnage and unfulfilled war goals to make sizable inroads in state and Federal midterm elections. Without victories, Lincoln stood no chance of reelection, and without great warrior generals there would be no victories.

  McClellan was not such a general, and on October 1, 1862, an angry Lincoln visited McClellan in t
he field and again expressed his frustrations over McClellan’s failure to pursue Lee’s retreating army. When McClellan continued to pursue the cautious path of limited war instead of crossing the Potomac while the November roads were still passable, Lincoln once again relieved McClellan of his command on November 5, and replaced him with Major General Ambrose Burnside.

  On paper, Burnside looked good. An 1847 graduate of West Point and a veteran of the Mexican and Indian wars, he had resigned from the army to form a business manufacturing firearms and had invented the breech-loading rifle. But his performance in commanding massive and complex armies in the field, where outcomes were determined by contingency and improvisation, was untested. He twice refused offers to command the Army of the Potomac, and his listless performance at Antietam, when he let Lee escape, suggests that he knew himself better than Lincoln did. But Lincoln could not stick with McClellan. The only other possible candidate, Joseph Hooker, was widely disliked by his fellow officers. So Burnside reluctantly took command of the most powerful army on the continent, if not in the world.

  In the next six weeks, Burnside confirmed his inability to command a large army with stunning finality.4 Instead of decisively moving his massive army of 122,000 south to strike Lee’s divided army on their unprotected wings and destroy them in detail, Burnside shifted his lines east and confronted Lee’s army at the hilly town of Fredericksburg, fifty miles north of Richmond alongside the Rappahannock River. The ground behind the town was ideal for strategic defensive placements, as it rose high in the air, peaking in an area known as Marye’s Heights. Soldiers could lie six deep in a sunken road behind the stone wall, creating a virtually impenetrable barrier that, with artillery behind, could withstand any frontal assault.