Chapter XI: The Approach of Victory (2)

The passing of the crisis in the war was fittingly commemorated by a number of State Governors who combined to institute a National Cemetery upon the field of Gettysburg. It was dedicated on November 19, 1863. The speech of the occasion was delivered by Edward Everett, the accomplished man once already mentioned as the orator of highest repute in his day. The President was bidden then to say a few words at the close. The oration with which for two hours Everett delighted his vast audience charms no longer, though it is full of graceful sentiment and contains a very reasonable survey of the rights and wrongs involved in the war, and of its progress till then. The few words of Abraham Lincoln were such as perhaps sank deep, but left his audience unaware that a classic had been spoken which would endure with the English language. The most literary man present was also Lincoln's greatest admirer, young John Hay. To him it seemed that Mr. Everett spoke perfectly, and "the old man" gracefully for him. These were the few words: "Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But, in a larger sense, we cannot dedicate--we cannot consecrate--we cannot hallow--this ground. The brave men, living and dead, who struggled here have consecrated it far above our poor power to add or to detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us, the living, rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us--that from these honoured dead we take increased devotion to that cause for which they gave the last full measure of devotion; that we here highly resolve that these dead shall not have died in vain; that this nation, under God, shall have a new birth of freedom; and that government of the people, by the people, for the people, shall not perish from the earth."

2. _Conscription and the Politics of 1863_.

The events of our day may tempt us to underestimate the magnitude of the American Civil War, not only in respect of its issues, but in respect of the efforts that were put forth. Impartial historians declare that "no previous war had ever in the same time entailed upon the combatants such enormous sacrifices of life and wealth." Even such battles as Malplaquet had not rivalled in carnage the battles of this war, and in the space of these four years there took place a number of engagements--far more than can be recounted here--in many of which, as at Gettysburg, the casualties amounted to a quarter of the whole forces engaged. The Southern armies, especially towards the end of the war, were continually being pitted against vastly superior numbers; the Northern armies, whether we look at the whole war as one vast enterprise of conquest or at almost any important battle save that of Gettysburg, were as continually confronted with great obstacles in the matter of locality and position. In this case, of a new and not much organised country unprepared for war, exact or intelligible figures as to losses or as to the forces raised must not be expected, but, according to what seems to be a fair estimate, the total deaths on the Northern and the Southern side directly due to the war stood to the population of the whole country at its beginning as at least 1 to 32. Of these deaths about half occurred on the Northern and half on the Southern side; this, however, implies that in proportion to its population the South lost twice as heavily as the North.

Neither side obtained the levies of men that it needed without resort to compulsion. The South, in which this necessity either arose more quickly or was seen more readily, had called up before the end of the war its whole available manhood. In the North the proportion of effort and sacrifice required was obviously less, and, at least at one critical moment, it was disastrously under-estimated. A system of compulsion, to be used in default of volunteering, was brought into effect half-way through the war. Under this system there were in arms at the end of the war 980,000 white Northern soldiers, who probably stood to the population at that time in as high a proportion as 1 to 25, and everything was in readiness for calling up a vastly greater number if necessary. After twenty months of war, when the purely voluntary system still existed but was proving itself inadequate to make good the wastage of the armies, the number in arms for the North was 860,717, perhaps as much as 1 in 27 of the population then. It would be useless to evade the question which at once suggests itself, whether the results of voluntary enlistment in this country during the present war have surpassed to the extent to which they undoubtedly ought to have surpassed the standard set by the North in the Civil War. For these two cases furnish the only instances in which the institution of voluntary enlistment has been submitted to a severe test by Governments reluctant to abandon it. The two cases are of course not strictly comparable. Our own country in this matter had the advantages of riper organisation, political and social, and of the preparatory education given it by the Territorials and by Lord Roberts. The extremity of the need was in our case immediately apparent; and the cause at issue appealed with the utmost simplicity and intensity to every brave and to every gentle nature. In the Northern States, on the other hand, apart from all other considerations, there were certain to be sections, local, racial, and political, upon which the national cause could take no very firm hold. That this was so proves no unusual prevalence of selfishness or of stupidity; and the apathy of such sections of the people, like that of smaller sections in our own case, sets in a brighter light the devotion which made so many eager to give their all. Moreover, the general patriotism of the Northern people is not to be judged by the failure of the purely voluntary system, but rather, as will be seen later, by the success of the system which succeeded it. There is in our case no official statement of the exact number serving on any particular day, but the facts which are published make it safe to conclude that, at the end of fifteen months of war, when no compulsion was in force, the soldiers then in service and drawn from the United Kingdom alone amounted to 1 in 17 of the population. The population in this case is one of which a smaller proportion are of military age than was the case in the Northern States, with their great number of immigrants. The apparent effect of these figures would be a good deal heightened if it were possible to make a correct addition in the case of each country for the numbers killed or disabled in war up to the dates in question and for the numbers serving afloat. Moreover, the North, when it was driven to abandon the purely voluntary system, had not reached the point at which the withdrawal of men from civil occupations could have been regarded among the people as itself a national danger, or at which the Government was compelled to deter some classes from enlisting; new industries unconnected with the war were all the while springing up, and the production and export of foodstuffs were increasing rapidly. For the reasons which have been stated, there is nothing invidious in thus answering an unavoidable question. Judged by any previous standard of voluntary national effort, the North answered the test well. Each of our related peoples must look upon the rally of its fathers and grandfathers in the one case, its brothers and sons in the other, with mingled feelings in which pride predominates, the most legitimate source of pride in our case being the unity of the Empire. To each the question must present itself whether the nations, democratic and otherwise, which have followed from the first, or, like the South, have rapidly adopted a different principle, have not, in this respect, a juster cause of pride. In some of these countries, by common and almost unquestioning consent, generation after generation of youths and men in their prime have held themselves at the instant disposal of their country if need should arise; and, in the absence of need and the absence of excitement, have contentedly borne the appreciable sacrifice of training. With this it is surely necessary to join a further question, whether the compulsion which, under conscription, the public imposes on individuals is comparable in its harshness to the sacrifice and the conflict of duties imposed by the voluntary system upon the best people in all classes as such.

From the manner in which the war arose it will easily be understood that the South was quicker than the North in shaping its policy for raising armies. Before a shot had been fired at Fort Sumter, and when only seven of the ten Southern States had yet seceded, President Jefferson Davis had at his command more than double the number of the United States Army as it then was. He had already lawful authority to raise that number to nearly three times as many. And, though there was protest in some States, and some friction between the Confederate War Department and the State militias, on the whole the seceding States, in theory jealous of their rights, submitted very readily in questions of defence to the Confederacy.

It is not clear how far the Southern people displayed their warlike temper by a sustained flow of voluntary enlistment; but their Congress showed the utmost promptitude in granting every necessary power to their President, and on April 16, 1862, a sweeping measure of compulsory service was passed. The President of the Confederacy could call into the service any white resident in the South between the ages of eighteen and thirty-five, with certain statutory exemptions. There was, of course, trouble about the difficult question of exemptions, and under conflicting pressure the Confederate Congress made and unmade various laws about them. After a time all statutory exemptions were done away, and it was left entirely in the discretion of the Southern President to say what men were required in various departments of civil life. The liability to serve was extended in September, 1862, to all between eighteen and forty-five, and finally in February, 1864, to all between seventeen and fifty. The rigorous conscription which necessity required could not be worked without much complaint. There was a party disposed to regard the law as unconstitutional. The existence of sovereign States within the Confederacy was very likely an obstacle to the local and largely voluntary organisation for deciding claims which can exist in a unified country. A Government so hard driven must, even if liberally minded, have enforced the law with much actual hardship. A belief in the ruthlessness of the Southern conscription penetrated to the North. If was probably exaggerated from the temptation to suppose that secession was the work of a tyranny and not of the Southern people. Desertion and failure of the Conscription Law became common in the course of 1864, but this would seem to have been due not so much to resentment at the system as to the actual loss of a large part of the South, and the spread of a perception that the war was now hopelessly lost. In the last extremities of the Confederate Government the power of compulsion of course completely broke down. But, upon the surface at least, it seems plain that what has been called the military despotism of Jefferson Davis rested upon the determination rather than upon the submissiveness of the people.

In the North, where there was double the population to draw upon, the need for compulsion was not likely to be felt as soon. The various influences which would later depress enlistment had hardly begun to assert themselves, when the Government, as if to aggravate them in advance, committed a blunder which has never been surpassed in its own line. On April 3, 1862, recruiting was stopped dead; the central recruiting office at Washington was closed and its staff dispersed. Many writers agree in charging this error against Stanton. He must have been the prime author of it, but this does not exonerate Lincoln. It was no departmental matter, but a matter of supreme policy. Lincoln's knowledge of human nature and his appreciation of the larger bearings of every question might have been expected to set Stanton right, unless, indeed, the thing was done suddenly behind his back. In any case, this must be added to the indications seen in an earlier chapter, that Lincoln's calm strength and sure judgment had at that time not yet reached their full development. As for Stanton, a man of much narrower mind, but acute, devoted, and morally fearless, kept in the War Department as a sort of tame tiger to prey on abuses, negligences, pretensions, and political influences, this was one among a hundred smaller erratic doings, which his critics have never thought of as outweighing his peculiar usefulness. His departmental point of view can easily be understood. Recruits, embarrassingly, presented themselves much faster than they could be organised or equipped, and an overdriven office did not pause to think out some scheme of enlistment for deferred service. Waste had been terrific, and Stanton did not dislike a petty economy which might shock people in Washington. McClellan clamoured for more men--let him do something with what he had got; Stanton, indeed, very readily became sanguine that McClellan, once in motion, would crush the Confederacy. Events conspired to make the mistake disastrous. In these very days the Confederacy was about to pass its own Conscription Act. McClellan, instead of pressing on to Richmond, sat down before Yorktown and let the Confederate conscripts come up. Halleck was crawling southward, when a rapid advance might have robbed the South of a large recruiting area. The reopening of enlistment came on the top of the huge disappointment at McClellan's failure in the peninsula. There was a creditable response to the call which was then made for volunteers. But the disappointment of the war continued throughout 1862; the second Bull Run; the inconclusive sequel to Antietam; Fredericksburg; and, side by side with these events, the long-drawn failure of Buell's and Rosecrans' operations. The spirit of voluntary service seems to have revived vigorously enough wherever and whenever the danger of Southern invasion became pressing, but under this protracted depressing influence it no longer rose to the task of subduing the South. It must be added that wages in civil employment were very high. Lincoln, it is evident, felt this apparent failure of patriotism sadly, but in calm retrospect it cannot seem surprising.

In the latter part of 1862 attempts were made to use the powers of compulsion which the several States possessed, under the antiquated laws as to militia which existed in all of them, in order to supplement recruiting. The number of men raised for short periods in this way is so small that the description of the Northern armies at this time as purely volunteer armies hardly needs qualification. It would probably be worth no one's while to investigate the makeshift system with which the Government, very properly, then tried to help itself out; for it speedily and completely failed. The Conscription Act, which became law on March 3, 1863, set up for the first time an organisation for recruiting which covered the whole country but was under the complete control of the Federal Government. It was placed under an officer of great ability, General J. B. Fry, formerly chief of staff to Buell, and now entitled Provost-Marshal-General. It was his business, through provost-marshals in a number of districts, each divisible into sub-districts as convenience might require, to enroll all male citizens between twenty and forty-five. He was to assign a quota, in other words a stated proportion of the number of troops for which the Government might at any time call, to each district, having regard to the number of previous enlistments from each district. The management of voluntary enlistment was placed in his hands, in order that the two methods of recruiting might be worked in harmony. The system as a whole was quite distinct from any such system of universal service as might have been set up beforehand in time of peace. Compulsion only came into force in default of sufficient volunteers from any district to provide its required number of the troops wanted. When it came into force the "drafts" of conscripts were chosen by lot from among those enrolled as liable for service. But there was a way of escape from actual service. It seems, from what Lincoln wrote, to have been looked upon as a time-honoured principle, established by precedent in all countries, that the man on whom the lot fell might provide a substitute if he could. The market price of a substitute (a commodity for the provision of which a class of "substitute brokers" came into being) proved to be about 1,000 dollars. Business or professional men, who felt they could not be spared from home but wished to act patriotically, did buy substitutes; but they need not have done so, for the law contained a provision intended, as Lincoln recorded, to safeguard poorer men against such a rise in prices. They could escape by paying 300 dollars, or 60 pounds, not, in the then state of wages, an extravagant penalty upon an able-bodied man. The sums paid under this provision covered the cost of the recruiting business.

Most emphatically the Conscription Law operated mainly as a stimulus to voluntary enlistment. The volunteer received, as the conscript did not, a bounty from the Government; States, counties, and smaller localities, when once a quota was assigned to them, vied with one another in filling their quota with volunteers, and for that purpose added to the Government bounty. It goes without saying that in a new country, with its scattered country population and its disorganised great new towns, there were plenty of abuses. Substitute brokers provided the wrong article; ingenious rascals invented the trade of "bounty-jumping," and would enlist for a bounty, desert, enlist for another bounty, and so on indefinitely; and the number of men enrolled who were afterwards unaccounted for was large. There was of course also grumbling of localities at the quotas assigned to them, though no pains were spared to assign them fairly. There was some opposition to the working of the law after it was passed, but it was, not general, but partly the opposition of rowdies in degraded neighbourhoods, partly factitious political opposition, and partly seditious and openly friendly to the South. In general the country accepted the law as a manifest military necessity. The spirit and manner of its acceptance may be judged from the results of any of the calls for troops under this law. For example, in December, 1864, towards the end of the war, 211,752 men were brought up to the colours; of these it seems that 194,715 were ordinary volunteers, 10,192 were substitutes provided by conscripts, and only 6,845 were actually compelled men. It is perhaps more significant still that among those who did not serve there were only 460 who paid the 300-dollar penalty, as against the 10,192 who must have paid at least three times that sum for substitutes. Behind the men who had been called up by the end of the war the North had, enrolled and ready to be called, over two million men. The North had not to suffer as the South suffered, but unquestionably in this matter it rose to the occasion.

The constitutional validity of the law was much questioned by politicians, but never finally tried out on appeal to the Supreme Court. There seems to be no room for doubt that Lincoln's own reasoning on this matter was sound. The Constitution simply gave to Congress "power to raise and support armies," without a word as to the particular means to be used for the purpose; the new and extremely well-considered Constitution of the Confederacy was in this respect the same. The Constitution, argued Lincoln, would not have given the power of raising armies without one word as to the mode in which it was to be exercised, if it had not meant Congress to be the sole judge as to the mode. "The principle," he wrote, "of the draft, which simply is involuntary or enforced service, is not new. It has been practised in all ages of the world. It was well known to the framers of our Constitution as one of the modes of raising armies. . . . It had been used just before, in establishing our independence, and it was also used under the Constitution in 1812." In fact, as we have seen, a certain power of compelling military service existed in each of the States and had existed in them from the first. Their ancestors had brought the principle with them from the old country, in which the system of the "militia ballot" had not fallen into desuetude when they became independent. The traditional English jealousy, which the American Colonies had imbibed, against the military power of the Crown had never manifested itself in any objection to the means which might be taken to raise soldiers, but in establishing a strict control of the number which the Crown could at any moment maintain; and this control had long been in England and had always been in America completely effective. We may therefore treat the protest which was raised against the law as unconstitutional, and the companion argument that it tended towards military despotism, as having belonged to the realm of political verbiage, and as neither founded in reason nor addressed to living popular emotions.

This is the way in which the Northern people, of whom a large part were, it must be remembered, Democrats, seem to have regarded these contentions, and a real sense, apart from these contentions, that conscription was unnecessary or produced avoidable hardship seems scarcely to have existed. It was probably for this reason that Lincoln never published the address to the people, or perhaps more particularly to the Democratic opposition, to which several references have already been made. In the course of it he said: "At the beginning of the war, and ever since, a variety of motives, pressing, some in one direction and some in the other, would be presented to the mind of each man physically fit to be a soldier, upon the combined effect of which motives he would, or would not, voluntarily enter the service. Among these motives would be patriotism, political bias, ambition, personal courage, love of adventure, want of employment, and convenience, or the opposite of some of these. We already have and have had in the service, as it appears, substantially all that can be obtained upon this voluntary weighing of motives. And yet we must somehow obtain more or relinquish the original object of the contest, together with all the blood and treasure already expended in the effort to secure it. To meet this necessity the law for the draft has been enacted. You who do not wish to be soldiers do not like this law. This is natural; nor does it imply want of patriotism. Nothing can be so just and necessary as to make us like it if it is disagreeable to us. We are prone, too, to find false arguments with which to excuse ourselves for opposing such disagreeable things." He proceeded to meet some of these arguments upon the lines which have already been indicated. After speaking of the precedents for conscription in America, he continued: "Wherein is the peculiar hardship now? Shall we shrink from the necessary means to maintain our free government, which our grandfathers employed to establish it and our fathers have already once employed to maintain it? Are we degenerate? Has the manhood of our race run out?" Unfair administration was apprehended. "This law," he said, "belongs to a class, which class is composed of those laws whose object is to distribute burthens or benefits on the principle of equality. No one of these laws can ever be practically administered with that exactness which can be conceived of in the mind. A tax law . . . will be a dead letter if no one will be compelled to pay until it can be shown that every other one will be compelled to pay in precisely the same proportion according to value; nay, even it will be a dead letter if no one can be compelled to pay until it is certain that every other one will pay at all. . . . This sort of difficulty applies in full force to the practical administration of the draft law. In fact, the difficulty is greater in the case of the draft law"; and he proceeded to state the difficulties. "In all these points," he continued, "errors will occur in spite of the utmost fidelity. The Government is bound to administer the law with such an approach to exactness as is usual in analogous cases, and as entire good faith and fidelity will reach." Errors, capable of correction, should, he promised, be corrected when pointed out; but he concluded: "With these views and on these principles, I feel bound to tell you it is my purpose to see the draft law faithfully executed." It was his way, as has been seen, sometimes to set his thoughts very plainly on paper and to consider afterwards the wisdom of publishing them. This paper never saw the light till after his death. It is said that some scruple as to the custom in his office restrained him from sending it out, but this scruple probably weighed with him the more because he saw that the sincere people whom he had thought of addressing needed no such appeal. It was surely a wise man who, writing so wisely, could see the greater wisdom of silence.

The opposition to the Conscription Law may be treated simply as one element in the propaganda of the official Opposition to the Administration. The opposition to such a measure which we might possibly have expected to arise from churches, or from schools of thought independent of the ordinary parties, does not seem, as a matter of fact, to have arisen. The Democratic party had, as we have seen, revived in force in the latter part of 1862. Persons, ambitious, from whatever mixture of motives, of figuring as leaders of opposition during a war which they did not condemn, found a public to which to appeal, mainly because the war was not going well. They found a principle of opposition satisfactory to themselves in condemning the Proclamation of Emancipation. (It was significant that McClellan shortly after the Proclamation issued a General Order enjoining obedience to the Government and adding the hint that "the remedy for political errors, if any are committed, is to be found only in the action of the people at the polls.") In the curious creed which respectable men, with whom allegiance to an ancient party could be a powerful motive at such a time, were driven to construct for themselves, enforcement of the duty to defend the country and liberation of the enemy's slaves appeared as twin offences against the sacred principles of constitutional freedom. It would have been monstrous to say that most of the Democrats were opposed to the war. Though a considerable number had always disliked it and now found courage to speak loudly, the bulk were as loyal to the Union as those very strong Republicans like Greeley, who later on despaired of maintaining it. But there were naturally Democrats for whom a chance now appeared in politics, and who possessed that common type of political mind that meditates deeply on minor issues and is inflamed by zeal against minor evils. Such men began to debate with their consciences whether the wicked Government might not become more odious than the enemy. There arose, too, as there often arises in war time, a fraternal feeling between men who hated the war and men who reflected how much better they could have if waged it themselves.

There was, of course, much in the conduct of the Government which called for criticism, and on that account it was a grievous pity that independence should have stultified itself by reviving in any form the root principle of party government, and recognising as the best critics of the Administration men who desired to take its place. More useful censure of the Government at that time might have come from men who, if they had axes to grind, would have publicly thrown them away. There were two points which especially called for criticism, apart from military administration, upon which, as it happened, Lincoln knew more than his critics knew and more than he could say. One of these points was extravagance and corruption in the matter of army contracts and the like; these evils were dangerously prevalent, but members of the Cabinet were as anxious to prevent them as any outside critic could be, and it was friendly help, not censure, that was required. The other point was the exercise of martial law, a difficult question, upon which a word must here be said, but upon which only those could usefully have spoken out whose general support of the Government was pronounced and sincere.

In almost every rebellion or civil war statesmen and the military officers under them are confronted with the need, for the sake of the public safety or even of ordinary justice, of rules and procedure which the law in peace time would abhor. In great conflicts, such as our own wars after the French Revolution and the American Civil War, statesmen such as Pitt and Lincoln, capable of handling such a problem well, have had their hands full of yet more urgent matters. The puzzling part of the problem does not lie in the neighbourhood of the actual fighting, where for the moment there can be no law but the will of the commander, but in the districts more distantly affected, or in the period when the war is smouldering out. Lincoln's Government had at first to guard itself against dangerous plots which could be scented but not proved in Washington; later on it had to answer such questions as this: What should be done when a suspected agent of the enemy is vaguely seen to be working against enlistment, when an attack by the civil mob upon the recruits is likely to result, and when the local magistrate and police are not much to be trusted? There is no doubt that Seward at the beginning, and Stanton persistently, and zealous local commanders now and then solved such problems in a very hasty fashion, or that Lincoln throughout was far more anxious to stand by vigorous agents of the Government than to correct them.

Lincoln claimed that as Commander-in-Chief he had during the continuance of civil war a lawful authority over the lives and liberties of all citizens, whether loyal or otherwise, such as any military commander exercises in hostile country occupied by his troops. He held that there was no proper legal remedy for persons injured under this authority except by impeachment of himself. He held, further, that this authority extended to every place to which the action of the enemy in any form extended--that is, to the whole country. This he took to be the doctrine of English Common Law, and he contended that the Constitution left this doctrine in full force. Whatever may be said as to his view of the Common Law doctrine, his construction of the Constitution would now be held by every one to have been wrong. Plainly read, the Constitution swept away the whole of that somewhat undefined doctrine of martial law which may be found in some decisions of our Courts, and it did much more. Every Legislature in the British Empire can, subject to the veto of the Crown, enact whatever exceptional measures of public safety it thinks necessary in an emergency. The Constitution restricted this legislative power within the very narrowest limits. There is, moreover, a recognised British practice, initiated by Wellington and Castlereagh, by which all question as to the authority of martial law is avoided; a governor or commander during great public peril is encouraged to consider what is right and necessary, not what is lawful, knowing that if necessary there will be enquiry into his conduct afterwards, but knowing also that, unless he acts quite unconscionably, he and his agents will be protected by an Act of Indemnity from the legal consequences of whatever they have done in good faith. The American Constitution would seem to render any such Act of Indemnity impossible. In a strictly legal sense, therefore, the power which Lincoln exercised must be said to have been usurped. The arguments by which he defended his own legality read now as good arguments on what the law should have been, but bad arguments on what the law was. He did not, perhaps, attach extreme importance to this legal contention, for he declared plainly that he was ready to break the law in minor matters rather than let the whole fabric of law go to ruin. This, however, does not prove that he was insincere when he pleaded legal as well as moral justification; he probably regarded the Constitution in a manner which modern lawyers find it difficult to realise; he probably applied in construing it a principle such as Hamilton laid down for the construction of statutes, that it was "qualified and controlled" by the Common Law and by considerations of "convenience" and of "reason" and of the policy which its framers, as wise and honest men, would have followed in present circumstances; he probably would have adapted to the occasion Hamilton's position that "construction may be made against the letter of the statute to render it agreeable to natural justice."

In the exercise of his supposed prerogative Lincoln sanctioned from beginning to end of the war the arrest of many suspected dangerous persons under what may be called "letters de cachet" from Seward and afterwards from Stanton. He publicly professed in 1863 his regret that he had not caused this to be done in cases, such as those of Lee and Joseph Johnston, where it had not been done. When agitation arose on the matter in the end of 1862 many political prisoners were, no doubt wisely, released. Congress then proceeded, in 1863, to exercise such powers in the matter as the Constitution gave it by an Act suspending, where the President thought fit, the privilege of the writ of _habeas corpus_. A decision of the Supreme Court, delivered curiously enough by Lincoln's old friend David Davis, showed that the real effect of this Act, so far as valid under the Constitution, was ridiculously small (see _Ex parte Milligan_, 4 Russell, 2). In any case the Act was hedged about with many precautions. These were entirely disregarded by the Government, which proceeded avowedly upon Lincoln's theory of martial law. The whole country was eventually proclaimed to be under martial law, and many persons were at the orders of the local military commander tried and punished by court-martial for offences, such as the discouragement of enlistment or the encouragement of desertion, which might not have been punishable by the ordinary law, or of which the ordinary Courts might not have convicted them. This fresh outbreak of martial law must in large part be ascribed to Lincoln's determination that the Conscription Act should not be frustrated; but apart from offences relating to enlistment there was from 1863 onwards no lack of seditious plots fomented by the agents of the Confederacy in Canada, and there were several secret societies, "knights" of this, that, or the other. Lincoln, it is true, scoffed at these, but very often the general on the spot thought seriously of them, and the extreme Democratic leader, Vallandigham, boasted that there were half a million men in the North enrolled in such seditious organisations. Drastic as the Government proceedings were, the opposition to them died down before the popular conviction that strong measures were necessary, and the popular appreciation that the blood-thirsty despot "King Abraham I.," as some Democrats were pleased to call him, was not of the stuff of which despots were made and was among the least blood-thirsty men living. The civil Courts made no attempt to interfere; they said that, whatever the law, they could not in fact resist generals commanding armies. British Courts would in many cases have declined to interfere, not on the ground that the general had the might, but on the ground that he had the right; yet, it seems, they would not quite have relinquished their hold on the matter, but would have held themselves free to consider whether the district in which martial law was exercised was materially affected by the state of war or not. The legal controversy ended in a manner hardly edifying to the layman; in the course of 1865 the Supreme Court solemnly tried out the question of the right of one Milligan to a writ of _habeas corpus_. At that time the war, the only ground on which the right could have been refused him, had for some months been ended; and nobody in court knew or cared whether Milligan was then living to enjoy his right or had been shot long before.

Save in a few cases of special public interest, Lincoln took no personal part in the actual administration of these coercive measures. So great a tax was put upon his time, and indeed his strength, by the personal consideration of cases of discipline in the army, that he could not possibly have undertaken a further labour of the sort. Moreover, he thought it more necessary for the public good to give steady support to his ministers and generals than to check their action in detail. He contended that no great injustice was likely to arise. Very likely he was wrong; not only Democrats, but men like Senator John Sherman, a strong and sensible Republican, thought him wrong. There are evil stories about the secret police under Stanton, and some records of the proceedings of the courts-martial, composed sometimes of the officers least useful at the front, are not creditable. Very likely, as John Sherman thought, the ordinary law would have met the needs of the case in many districts. The mere number of the political prisoners, who counted by thousands, proves nothing, for the least consideration of the circumstances will show that the active supporters of the Confederacy in the North must have been very numerous. Nor does it matter much that, to the horror of some people, there were persons of station, culture, and respectability among the sufferers; persons of this kind were not likely to be exposed to charges of disloyal conduct if they were actively loyal. Obscure and ignorant men are much more likely to have become the innocent victims of spiteful accusers or vile agents of police. Doubtless this might happen; but that does not of itself condemn Lincoln for having maintained an extreme form of martial law. The particular kind of oppression that is likely to have occurred is one against which the normal procedure of justice and police in America is said to-day to provide no sufficient safeguard. It is almost certain that the regular course of law would have exposed the public weal to formidable dangers; but it by no means follows that it would have saved individuals from wrong. The risk that many individuals would be grievously wronged was at least not very great. The Government was not pursuing men for erroneous opinions, but for certain very definite kinds of action dangerous to the State. These were indeed kinds of action with which Lincoln thought ordinary Courts of justice "utterly incompetent" to deal, and he avowed that he aimed rather at preventing intended actions than at punishing them when done. To some minds this will seem to be an attitude dangerous to liberty, but he was surely justified when he said, "In such cases the purposes of men are much more easily understood than in cases of ordinary crime. The man who stands by and says nothing when the peril of his Government is discussed cannot be misunderstood. If not hindered, he is sure to help the enemy, much more if he talks ambiguously--talks for his country with 'buts' and 'ifs' and 'ands.'" In any case, Lincoln stood clearly and boldly for repressing speech or act, that could help the enemy, with extreme vigour and total disregard for the legalities of peace time. A little later on we shall see fully whether this imported on his part any touch whatever of the ferocity which it may seem to suggest.

The Democratic opposition which made some headway in the first half of 1863 comprised a more extreme opposition prevailing in the West and led by Clement Vallandigham, a Congressman from Ohio, and a milder opposition led by Horatio Seymour, who from the end of 1862 to the end of 1864, when he failed of re-election, was Governor of New York State. The extreme section were often called "Copperheads," after a venomous snake of that name. Strictly, perhaps, this political term should be limited to the few who went so far as to desire the victory of the South; more loosely it was applied to a far larger number who went no further than to say that the war should be stopped. This demand, it must be observed, was based upon the change of policy shown in the Proclamation of Emancipation. "The war for the Union," said Vallandigham in Congress in January, 1863, "is in your hands a most bloody and costly failure. War for the Union was abandoned; war for the negro openly begun. With what success? Let the dead at Fredericksburg answer.--Ought this war to continue? I answer no--not a day, not an hour. What then? Shall we separate? Again I answer, no, no, no.--Stop fighting. Make an armistice. Accept at once friendly foreign mediation." And further: "The secret but real purpose of the war was to abolish slavery in the States, and with it the change of our present democratical form of government into an imperial despotism." This was in no sense treason; it was merely humbug. The alleged design to establish despotism, chiefly revealed at that moment by the liberation of slaves, had of course no existence. Equally false, as will be seen later, was the whole suggestion that any peace could have been had with the South except on the terms of separation. Vallandigham, a demagogue of real vigour, had perhaps so much honesty as is compatible with self-deception; at any rate, upon his subsequent visit to the South his intercourse with Southern leaders was conducted on the footing that the Union should be restored. But his character inspired no respect. Burnside, now commanding the troops in Ohio, held that violent denunciation of the Government in a tone that tended to demoralise the troops was treason, since it certainly was not patriotism, and when in May, 1863, Vallandigham made a very violent and offensive speech in Ohio he had him arrested in his house at night, and sent him before a court-martial which imprisoned him. Loud protest was raised by every Democrat. This worry came upon Lincoln just after Chancellorsville. He regretted Burnside's action--later on he had to reverse the rash suppression of a newspaper by which Burnside provoked violent indignation--but on this occasion he would only say in public that he "regretted the necessity" of such action. Evidently he thought it his duty to support a well-intentioned general against a dangerous agitator. The course which after some consideration he took was of the nature of a practical joke, perhaps justified by its success. Vallandigham was indeed released; he was taken to the front and handed over to the Confederates as if he had been an exchanged prisoner of war. In reply to demands from the Democratic organisation in Ohio that Vallandigham might be allowed to return home, Lincoln offered to consent if their leaders would sign a pledge to support the war and promote the efficiency of the army. This they called an evasion. Vallandigham made his way to Canada and conducted intrigues from thence. In his absence he was put up for the governorship of Ohio in November, but defeated by a huge majority, doubtless the larger because of Gettysburg and Vicksburg. The next year he suddenly returned home, braving the chance of arrest, and, probably to his disappointment, Lincoln let him be. In reply to protests against Vallandigham's arrest which had been sent by meetings in Ohio and New York, Lincoln had written clear defences of his action, from which the foregoing account of his views on martial law has been taken. In one of them was a sentence which probably went further with the people of the North than any other: "Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?" There may or may not be some fallacy lurking here, but it must not be supposed that this sentence came from a pleader's ingenuity. It was the expression of a man really agonised by his weekly task of confirming sentences on deserters from the army.

Governor Seymour was a more presentable antagonist than Vallandigham. He did not propose to stop the war. On the contrary, his case was that the war could only be effectively carried on by a law-abiding Government, which would unite the people by maintaining the Constitution, not, as the Radicals argued, by the flagitious policy of freeing the slaves. It should be added that he was really concerned at the corruption which was becoming rife, for which war contracts gave some scope, and which, with a critic's obliviousness to the limitations of a human force, he thought the most heavily-burdened Administration of its time could easily have put down. With a little imagination it is easy to understand the difficult position of the orthodox Democrats, who two years before had voted against restricting the extension of slavery, and were now asked for the sake of the Union to support a Government which was actually abolishing slavery by martial law. Also the attitude of the thoroughly self-righteous partisan is perfectly usual. Many of Governor Seymour's utterances were fair enough, and much of his conduct was patriotic enough. His main proceedings can be briefly summarised. His election as Governor in the end of 1862 was regarded as an important event, the appearance of a new leader holding an office of the greatest influence. Lincoln, assuming, as he had a right to do, the full willingness of Seymour to co-operate in prosecuting the war, did the simplest and best thing. He wrote and invited Seymour after his inauguration in March, 1863, to a personal conference with himself as to the ways in which, with their divergent views, they could best co-operate. The Governor waited three weeks before he acknowledged this letter. He then wrote and promised a full reply later. He never sent this reply. He protested energetically and firmly against the arrest of Vallandigham. In July, 1863, the Conscription Act began to be put in force in New York city; then occurred the only serious trouble that ever did occur under the Act; and it was very serious. A mob of foreign immigrants, mainly Irish, put a forcible stop to the proceeding of the draft. It set fire to the houses of prominent Republicans, and prevented the fire brigade from saving them. It gave chase to all negroes that it met, beating some to death, stringing up others to trees and lamp-posts and burning them as they hung. It burned down an orphanage for coloured children after the police had with difficulty saved its helpless inmates. Four days of rioting prevailed throughout the city before the arrival of fresh troops restored order. After an interval of prudent length the draft was successfully carried out. Governor Seymour arrived in the city during the riots. He harangued this defiled mob in gentle terms, promising them, if they would be good, to help them in securing redress of the grievance to which he attributed their conduct. Thenceforward to the end of his term of office he persecuted Lincoln with complaints as to the unfairness of the quota imposed on certain districts under the Conscription Act. It is true that he also protested on presumably sincere constitutional grounds against the Act itself, begging Lincoln to suspend its enforcement till its validity had been determined by the Courts. As to this Lincoln most properly agreed to facilitate, if he could, an appeal to the Supreme Court, but declined, on the ground of urgent military necessity, to delay the drafts in the meantime. Seymour's obstructive conduct, however, was not confined to the intelligible ground of objection to the Act itself; it showed itself in the perpetual assertion that the quotas were unfair. No complaint as to this had been raised before the riots. It seems that a quite unintended error may in fact at first have been made. Lincoln, however, immediately reduced the quotas in question to the full extent which the alleged error would have required. Fresh complaints from Seymour followed, and so on to the end. Ultimately Seymour was invited to come to Washington and have out the whole matter of his complaints in conference with Stanton. Like a prudent man, he again refused to face personal conference. It seems that Governor Seymour, who was a great person in his day, was very decidedly, in the common acceptance of the term, a gentleman. This has been counted unto him for righteousness. It should rather be treated as an aggravation of his very unmeritable conduct.

Thus, since the Proclamation of Emancipation the North had again become possessed of what is sometimes considered a necessity of good government, an organised Opposition ready and anxious to take the place of the existing Administration. It can well be understood that honourable men entered into this combination, but it is difficult to conceive on what common principle they could hold together which would not have been disastrous in its working. The more extreme leaders, who were likely to prove the driving force among them, were not unfitly satirised in a novel of the time called the "Man Without a Country." Their chance of success in fact depended upon the ill-fortune of their country in the war and on the irritation against the Government, which could be aroused by that cause alone and not by such abuses as they fairly criticised. In the latter part of 1863 the war was going well. A great meeting of "Union men" was summoned in August in Illinois. Lincoln was tempted to go and speak to them, but he contented himself with a letter. Phrases in it might suggest the stump orator, more than in fact his actual stump speeches usually did. In it, however, he made plain in the simplest language the total fallacy of such talk of peace as had lately become common; the Confederacy meant the Confederate army and the men who controlled it; as a fact no suggestion of peace or compromise came from them; if it ever came, the people should know it. In equally simple terms he sought to justify, even to supporters of the Union who did not share his "wish that all men could be free," his policy in regard to emancipation. In any case, freedom had for the sake of the Union been promised to negroes who were now fighting or working for the North, "and the promise being made must be kept." As that most critical year of the war drew to a close there was a prevailing recognition that the rough but straight path along which the President groped his way was the right path, and upon the whole he enjoyed a degree of general favour which was not often his portion.

3. _The War in 1864_.