President Lincoln- The Duty of a Statesman

by William Lee Miller

  PEOPLE WON’T STAND IT, AND THEY OUGHT NOT STAND IT

  WILLIAM TECUMSEH SHERMAN produced, as one might expect, the most grimly utilitarian argument for execution, in a letter to Judge Advocate General Holt in April 1864: “[F]orty or fifty executions now would in the next twelve months save ten thousand lives.”

  Lincoln certainly was not going to agree with that proposition. Forty or fifty executions now! How carefully would each be considered on its individual merits if the commanding general had the collective purpose of setting examples? When Lincoln was asked in 1862 why, with thousands of absentees from the armies, the death penalty for desertion was not enforced, he answered, “Because you cannot order men shot by the dozens and twenties. People won’t stand it, and they ought not stand it.” It is significant that he gave not only the practical political reason—people won’t stand it—but also the moral one: they ought not to stand it.

  As the American Civil War was fought with military tactics outdated by the rifle and the new weaponry, so Lincoln may have had the moral instinct that traditional military punishments were outdated in the age of the people’s army. For the professional military men, the relation of the army to the civilian population was not a matter of immediate consideration. But the president had to have that civilian connection in mind all the time—it would affect the role of volunteering, acceptance of conscription, avoidance of uproars like the July 1863 antidraft riots in New York, and how the Union army was regarded.

  Lincoln may have questioned whether shooting deserters dead was as efficacious in stopping desertions as some in the military believed or as the professional army tradition held. A politician with insight into human complexity may perceive that advocates of the most drastic punishments regularly overestimate both the deterrent effect of their threatened use and the exemplary effect of actually carrying them out.

  One of the most widely read and appreciated presentations of Lincoln’s role as “The Pardoner” would be a chapter by that name in the massive twentieth-century biography by Carl Sandburg. Given the warmly positive flavor of the book and particularly that chapter, one is startled to read this paragraph, which simply takes for granted the claimed efficacy of the shootings:

  To what extent did the President’s frequent pardons interfere with army discipline? Chauncey M. Depew was to answer by quoting General Sherman. “How did you carry out the sentences of your court-martials and escape Lincoln’s pardons?” Depew asked. Sherman answered, “I shot them first!” Whatever the irregular or illegal device used by Sherman in this respect, it was probably also used by Grant, Thomas, Sheridan and every other commander who won campaigns and battles.

  Sandburg did not know this about these generals; he made a sweeping assumption. It does not appear that all the most successful generals executed soldiers without approval by the president, as Sherman may well have done;*62 some of the most vociferous critics of Lincoln’s practice were conspicuously unsuccessful political generals like Butler. In the letter to Herndon by Leonard Swett written on January 17, 1866, Swett quotes Lincoln interrupting the discussion of Swett’s request for a pardon by saying, reflectively, “Grant never executed a man did he?…I have been watching that thing.” It was not quite true that Grant never executed a man, but it is significant that Lincoln should think so: that the general he regarded as the most successful of all militarily should not require the grim discipline of formulaic executions.

  THE OFFICERS’ CLUB

  THE JUSTICE OF Lincoln’s pardons to young enlisted soldiers is supported by the fact that officers were never executed. Did officers never do the deeds that presented a mortal danger to the troops?

  Officers made the arrests; officers preferred charges; commanding officers established the courts-martial. Officers staffed the courts-martial, by the appointment of the commander; the commander then accepted or rejected the court’s order and put it into effect. Executions were often ordered—he shall be shot to death with musketry—but never of officers.

  Thomas Lowry and Beverly Lowry, going through an enormous number of Union army courts-martial in the National Archives, find no officers: “Hundreds of Union soldiers were shot by firing squads. If a Union officer stood before a firing squad, we have not seen the record.”

  Officers could resign; privates could not resign. For severe offenses officers were cashiered, drummed out of office, or dishonorably discharged—painful, often life-damaging punishments no doubt, but still not the same as being shot dead. One can find contrasting treatments of officers and men for essentially the same offense spread throughout the record.

  Mark E. Neely, Jr., remarks in his article on “Clemency” in The Abraham Lincoln Encyclopedia that Lincoln was notably tougher on officers than on enlisted men: “Of fifty-nine convictions involving officers in the last half of 1863, fourteen were given more severe punishments by the president than by their courts-martial.”

  YOU ALL ASK ME FOR PARDONS

  LINCOLN HIMSELF noted that many who in general criticized his leniency nevertheless made specific (perhaps embarrassed) requests for pardons for soldiers whom they personally knew or were connected to.

  Gideon Welles, the secretary of the navy, criticized his chief’s excessive leniency in his diary more than once, including this entry for Saturday, December 24, 1864: “Called on the president to commute the sentence of a person condemned to be hung. He at once assented. Is always disposed to mitigate punishment. Sometimes this is a weakness.”

  But we may note, significantly, that Welles here criticizes the president for doing what in this instance he, Welles, himself had just asked him to do.

  Senator Henry Wilson tells another tale of a request for a particular pardon and of Lincoln’s significant response:

  My officers tell me the good of the service demands the enforcement of the Law, but it makes my heart ache to have the poor boys shot. I will pardon him, and then you will all join in blaming me for it. You all censure me for granting pardons, and yet you all ask me to do so.

  A GREAT MERCY TO A SIMPLE SOLDIER

  THAT LINCOLN WAS acutely troubled by those butcher-day shootings of young deserters is indicated by a famous passage in one of his best state papers on another subject. In June 1863 he gathered together ideas he had jotted on scraps of paper and sat down to write a public letter responding to resolutions by an assembly of New York Union Democrats condemning the notorious arrest, and conviction, of a Northern opponent of the war, Clement Vallandigham, the Peace Democrat and Southern sympathizer from Ohio. When Vallandigham made deliberately provocative speeches against the war, General Burnside, commanding the military department of Ohio, had him arrested. Lincoln, who would not have initiated the arrest, had the problem that presented itself often, as we have seen, in his elevated position: what to do about a subordinate whose action he did not agree with. In this case he did not repudiate what Burnside had done but changed Vallandigham’s punishment from imprisonment to the poetic justice of banishment behind Confederate lines, preventing his becoming a martyr. In answer to the protests against the arrest by New York Democrats, Lincoln wrote a strong public letter. Its best-known sentence (“Must I shoot a simple soldier boy…”) is often quoted in isolation, but let us look at the paragraph in which that sentence appears.

  I understand the meeting, whose resolution I am considering, to be in favor of suppressing the Rebellion by military force—by armies. Long experience has shown that armies cannot be maintained unless desertions shall be punished by the severe penalty of death. The case requires, and the law and the Constitution sanction, this punishment.

  It is by no means clear that Lincoln himself accepted the alleged necessity in the case of the soldiers in this people’s army, but he gave a tidy summary of the position of many generals and others, stated for his own argumentative purposes in this context of a dispute about a different matter.

  And now with those premises there comes a rhetorical challenge in the often-quoted sentence: “Must I shoot a simple
-minded soldier boy who deserts, while I must not touch a hair of the wily agitator who induces him to desert?”

  Suddenly Lincoln has shifted the focus from the boy, standing alone in his ruinous act, to his social context. And he goes on. Most simpleminded soldiers are not directly induced to desert by a wily agitator, so Lincoln makes a less direct connection:

  This is none the less injurious when effected by getting a father, or brother, or friend, into public meeting, and there working upon his feelings, till he is persuaded to write the soldier boy that he is fighting in a bad cause, for a wicked administration of a contemptible government, too weak to arrest and punish him if he shall desert.

  So now Lincoln’s conclusion:

  I think that in such a case to silence that agitator, and save the boy is not only constitutional, but withal a great mercy.

  The soldier boy is not (Lincoln argues) an isolated atom. He hears the voices in society—of agitators, of his friend, brother, father. They are at least as culpable as the soldier. And under the condition of rebellion and war—which is like a time of great sickness in a man’s body—it is necessary to take restrictive measures that one would not take in times of health. It is constitutional, and it is just, to constrain Mr. Vallandigham at one point in the flow of public argument in order that this mercy be done at another: that the boy not be induced to desert and thus be saved from shooting.

  THEY WOULD THINK THAT WE FLINCH

  OPPONENTS of his leniency urged that any display of humanity or generosity would be misinterpreted as weakness or timidity. And further the corollary, The beneficiaries will not appreciate your generosity. All they understand is brute power. One of the letters Lincoln received at the time of the Sioux Massacres included this argument against his pardons:

  The Indians, if unpunished, will not give the Great Father as they term you, credit for magnanimity, or generosity; they will boast in their Wigwams, and as they dance around their war fires, decorated with the scalps of our hardy pioneers & their daughters & wives, & children, that we dared not punish them.

  Butler, like some other generals, blamed his losses on the president, and when asked why victory took so long, he answered: “Pusillanimity and want of executive force in government.” “Executive force” apparently meant, to Butler, the endorsement of executions.

  In Billy Budd Captain Vere uses a variant of the word that Butler used; if Vere agreed with the tenderhearted officers not to hang Billy, then the conclusion of the men on board would be: “Your clement sentence they would account pusillanimous. They would think that we flinch.”

  Executives obviously do need to make decisions that cause someone harm. Avoiding such decisions is a fault. But is that the only blameworthy syndrome in our leaders? Is there not also a familiar pattern in the opposite direction? Don’t leaders often exhibit a certain Machiavellian relish, a certain braggadocio about how “tough” they must be to make the “tough” decisions? And a considerable self-sympathy for the heavy “burden” of decisions that they must carry? And may they not justify their toughness by insisting that generosity will be misinterpreted, that all “they” understand is raw power? Which of the two self-indulging syndromes here suggested is the more common in leaders of states and armies and great institutions? May it not be that self-congratulation on one’s toughness, and the inertia of the acceptance of received patterns, may lead to a certain cauterizing of the conscience? And so one may accept, and not only accept but insist on, those Fridays when the firing squad steps forward and shoots to death with musketry a row of scared and confused kids, who a few months ago were harmless civilians. And it then takes an outsider inclined to charity and armed with the power of the pardon to cut through that—to say, Wait a minute; what are we doing? And it may take a certain amount of that vaunted “toughness” in another mode to insist on issuing pardons in the face of military resistance.

  Lincoln himself made statements that he pardoned some “boy” who was about to be shot to give himself the satisfaction of going to bed knowing he had saved a life; but it fits what we know of Lincoln to believe that he was operating not out of ungoverned emotion—sheer pity, without intelligent appraisal—and certainly not out of sheer self-regard, to give himself a little shot of self-satisfaction, but out of a moral conviction that rejected the radical disproportion of the sentence of death in the typical case. Looking at the case with the eyes of charity, he had found the sentence unjust.

  Lincoln had been responding to cases as he saw them, one by one, and then developing a few principles of extenuation. But at the same time he was implicitly developing a larger general principle rejecting the death penalty in standard desertion cases. On March 10, 1863, he issued a proclamation granting a general amnesty to all soldiers then absent without leave. Hence all those absent without leave, treated as a category, whatever their individual case, could be in effect pardoned if they would report by April 1.

  This proclamation also linked the deserter to others in society and used against these others arguments that his critics make against the deserting soldier. Lincoln again showed that he understood the problem of desertions:

  And whereas evil disposed and disloyal persons at sundry places have enticed and procured soldiers to desert and absent themselves from their regiments, thereby weakening the strength of the armies and prolonging the war, giving aid and comfort to the enemy, and cruelly exposing the gallant and faithful soldiers remaining in the ranks to increased hardships and danger, I do therefore call upon all patriotic and faithful citizens to oppose and resist the aforementioned dangerous and treasonable crimes, and to aid in restoring to their regiments all soldiers absent without leave.

  That episode led at least General Joseph Hooker to conclude that Lincoln had adopted a general deserter-pardoning principle. Hooker promptly forwarded the court-martial records of fifty-five soldiers who had been sentenced to be shot for desertion, recommending “pardon in view of the proclamation of March 10, 1863, pardoning all deserters who returned before April 1, 1863.” So the president proceeded to write on the envelope containing these records: “Pardoned A. LINCOLN.”

  Presumably the beleaguered president wanted to group and combine these multitudinous cases, because there were getting to be so many of them that he was in danger of being overwhelmed. At the same time he was working out a more general moral rule for these cases, contradicting on this one point the severity of the military code.

  Lincoln was no reformer, let alone revolutionary; he had a clear understanding of the necessary and worthy role of settled law and of government. He did not challenge the death penalty as such—indeed, he concurred in a number of executions—and he did not challenge the military code as such or in its entirety. But with respect to one particular matter, the charity informing his judgment would lead him to see that the strict application of that code should be resisted.

  It has been suggested that Lincoln was not unaware of the advantages to himself, in his own political career, of being thought merciful. Perhaps so; but in the midst of the war, that was a two-edged sword. By far the most important consideration in his own political fortunes was for the Union army to win victories. To be thought unduly merciful, if the Union armies kept losing, would be to be thought weak, and to bear even more of the blame than he otherwise would for the defeats.

  Of course Lincoln wanted the Union armies to be effective, more than anyone. In other contexts he could be relentless, in taking losses of life now to get the war won sooner, in dismissing generals who did not fight. But he was not in favor of having Union firing squads shoot scared Union youngsters in order, allegedly, to achieve victory, and he stuck to that view and acted on it.

  Congress made its own entrance into this topic, amending the basic draft act, directing the president to issue the Proclamation Offering Pardon to Deserters, which he did, on March 11, 1865. The first part was a threat:

  [A]ll persons who have deserted the military or naval service of the United States who shall not retur
n to said service, or report themselves to a Provost Marshal within sixty days after the proclamation hereinafter mentioned shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship.

  But the second part, in Lincoln’s own name, brought the law into accord with Lincoln’s policy, now in its more benign version, “Let him fight instead of being shot”:

  Now, therefore, be it known that I, Abraham Lincoln, President of the United States, do issue this my Proclamation, as required by said act, ordering and requiring all deserters to return to their proper posts, and I do hereby notify them that all deserters, who shall, within sixty days from the date of this proclamation, viz: on or before the tenth day of May 1865, return to service or report themselves to a Provost Marshal, shall be pardoned, on condition that they return to their regiments.

  Having come to be convinced that military justice in this particular matter needed a redefinition, Lincoln gave a general order and saved the lives of many at one stroke.

  On April 12, 1865, in the middle of a busy schedule, the president wrote on the court-martial papers of Private George Maynard, 46th New York Volunteers, who had been sentenced to death for desertion: “Let the Prisoner be pardoned and returned to his Regiment.”