Front matter (continued 10)

A few changes had occurred in the original roster of officers, making additional vacancies. Governor Morgan of New York, who had a complimentary appointment as major-general, but had never served, resigned. Schuyler Hamilton also resigned, and Fitz-John Porter was cashiered.

The number to be sacrificed was thus reduced to six, and the lot fell on Generals N. B. Buford, G. W. Morell, W. F. Smith, H. G. Wright, J. M. Schofield, and myself. The last four won their promotion a second time and were re-appointed and confirmed at varying intervals; but of that later. Of course, in such a scramble it was only a question as to who had or had not powerful friends on the spot who would voluntarily champion his cause. No one at a distance could have any warning. The passage of the bill and action under it came together. For myself, I had gone quietly on in the performance of duty, never dreaming of danger, and it was long years after the war before I learned how the thing had in fact been done. My place had been near the top of the list, the commands which I had exercised and the responsibilities intrusted to me had been greater than those of the large majority of the appointees, and I had conclusive evidence of the approval of my superiors. The news was at first, therefore, both astonishing and disheartening. As a result of political "influences," it is sufficiently intelligible. I had at that time a barely speaking acquaintance with Senator Wade of Ohio. It was the same with Senator Sherman, but with the added disadvantage that in the senatorial contest of 1860 between him and Governor Dennison I had warmly espoused the cause of the latter. Mr. Hutchins, the representative from my district, had not been renominated, and Garfield, who was elected in his place, had not yet taken his seat, but was still in the military service in the field. Mr. Chase had been a constant friend, but this was just the time when his differences with Mr. Lincoln had become acute, and since the 20th of December the President had in his hands the resignations of both Seward and Chase, which enabled him to refuse both, and to baffle the party in the Senate which was trying to force him to reorganize his cabinet by excluding Seward and those who were thought the more conservative. As he expressed it, "he had a pumpkin in each end of his bag, and could now ride." [Footnote: Hay and Nicolay's "Lincoln," vol. vi. p. 271.] If, on the theory of apportioning the promotions to States, it were held that Ohio must lose one of the six nominated, it was easy to see where the balance of influence would be. General Halleck was well known to be persistent in favoring appointments from the regular army, and would urge that the reduction should be made from those originally appointed from civil life. These were Schenck and myself. But General Schenck was a veteran member of the House of Representatives and had now been elected to the next house, in which it was known he would be a prominent character. It goes without saying, therefore, that on such a basis the black ball would come to me. [Footnote: The promotions of Ohio officers then pending, besides my own, were of Schenck, McCook, Rosecrans, Stanley, McPherson, and Sheridan.] To complete the story of the promotions made at this time, it may be added that a short executive session of the Senate was held after the regular adjournment of Congress on the 4th of March, and that the President sent in the names of Carl Schurz and Julius Stahel to be made major-generals. For one of these a vacancy was made by the arrangement that Cassius M. Clay was reappointed minister to St. Petersburg and resigned the military rank which he had never used. The other seems to have been made by a resignation to take effect the next month. General Sumner died on the 21st of March, making another vacancy, but it is difficult to fix with accuracy the exact date of the changes which occurred. [Footnote: The reason for this difficulty is in part found in the frequent assignment of rank to officers from an earlier date than their appointment, and as the official lists are arranged according to rank, they are sometimes misleading as to date of appointment. Thus Rosecrans dates in the register from March 21, 1862, but he was not appointed till some six months later. So also Schofield when reappointed in May, 1863, was made to rank as in his first appointment, from Nov. 29, 1862.] In the case of the last two promotions Mr. Lincoln openly declared that he made them in recognition of the German element in the army and in politics. [Footnote: For an illustration of Mr. Lincoln's way of putting things in such cases, see "Military Miscellany" by Colonel James B. Fry, p. 281.]

It would be unjust to assume that members of Congress and the President were not guided by patriotic motives. The reform of the public service in matters of appointment had not then attracted much attention. Patronage was used for political purposes with complete frankness and openness. In civil offices this custom was boldly defended and advocated. There was some consciousness shown that promotions in the army ought to be controlled by a somewhat different rule, but it seemed to be thought that enough was done in the way of safeguard when the choice was confined to officers already in service, and appointments for the highest grades were not given to entirely new men from civil life. Each aspirant could find friends to sound his praises, and it was easy to assert that it was only giving preference to one's friends among officers of equal merit. Many excellent appointments were in fact made, and the proportion of these would have been greater if the judgment of military superiors had been more controlling in determining the whole list. Mr. Lincoln's humorous way of explaining his actions may give an impression of a lower standard than he actually acknowledged; but it cannot be denied that he allowed himself to be pressed into making military promotions, at times, upon purely political or personal reasons. [Footnote: Colonel Fry, who was assistant adjutant-general at Washington and in personal intercourse with the President, gives the following as a memorandum made by Mr. Lincoln himself in reference to an application to have a regular-army officer made a brigadier-general of volunteers. "On this day Mrs. ----- called upon me: she is the wife of Major ----- of the regular army. She is a saucy little woman, and I think she will torment me till I have to do it." Colonel Fry adds, "It was not long till that little woman's husband was appointed a brigadier-general." Miscellany, pp. 280, 281.]

It did not seem to occur to the authorities that the judgment of superior officers in the field should be called for and carefully considered when it was a question of promoting one of their subordinates. An instance which occurred in General Buell's army carried this beyond the verge of the grotesque. Colonel Turchin, of an Illinois regiment, was a Russian, an educated officer who had served in the Russian staff corps. An excellent soldier in many respects, his ideas of discipline were, unfortunately, lax, and in the summer of 1862 he was courtmartialled for allowing his men to pillage a town in Tennessee. The court was an intelligent one, of which General Garfield was president. The story current in the army at the time, and which I believe to be true, is that after the court had heard part of the testimony it became apparent that they must convict, and Mrs. Turchin, who usually accompanied her husband in the field, started to the rear to procure political "influences" to save him. With various recommendations she went to Washington, and was so successful that although the sentence of the court dismissing him from the service was promulgated on the 6th of August, he had been appointed a brigadier-general of volunteers on the 5th, and he was not one of those who were dropped from the list on March 3, 1863. [Footnote: Official Records, vol. xvi. pt. ii. p. 277.] The trial was one of considerable notoriety, yet it is probable that it was overlooked by the President and Secretary of War at the time the appointment was made; but it cannot need to be said that whatever grounds for leniency might have existed, it turns the whole business into a farce when they were made the basis of a promotion in the revised list six months later. To add to the perfection of the story, Mrs. Turchin had acted on her own responsibility, and the colonel did not know of the result till he had gone home, and in an assembly of personal friends who called upon him ostensibly to cheer him in his doleful despondency, his wife brought the little drama to its dénouement by presenting him with the appointment in their presence.

One of the worst features of the method of appointment by "slate" made up between congressmen and the executive was that it filled up every place allowed by law, and left nothing to be used as a recognition for future services in the field, except as vacancies occurred, and these were few and far between. The political influences which determined the appointment were usually powerful enough to prevent dismissal. Whoever will trace the employment of officers of the highest grades in the last half of the war, will find large numbers of these on unimportant and nominal duty, whilst their work in the active armies was done by men of lower grade, to whom the appropriate rank had to be refused. The system was about as bad as could be, but victory was won in spite of it. It was fortunate, on the whole, that we did not have the grades of lieutenant-general and general during the war, as the Confederates had. They made the one the regular rank of a corps commander and the other of the commander of an army in the field. With us the assignment of a major-general by the President to command a corps gave him a temporary precedence over other major-generals not so assigned, and in like manner for the commander of an army. [Footnote: Our system was essentially that of the first French Republic and the Consulate, under which any general of division was assignable to an army command in chief.] If these were relieved, they lost the precedence, and thus there was a sort of temporary rank created, giving a flexibility to the grade of major-general, without which we should have been greatly embarrassed. Grant's rank of lieutenant-general was an exceptional grade, made for him alone, when, after the battle of Missionary Ridge, he was assigned to the command of all the armies.

These opinions of mine are not judgments formed after the fact. The weak points in our army organization were felt at the time, and I took every means in my power to bring them to the attention of the proper authorities, State and National. At the close of 1862 a commission was appointed by the Secretary of War to revise the articles of war and army regulations. Of this commission Major-General Hitchcock was chairman. They issued a circular calling for suggestions as to alterations supposed to be desirable, and a copy was sent to me among others. I took occasion to report the results of my own experience, and to trace the evils which existed to their sources in our military system. I called attention to the striking parallel between our practices and those that had been in use in the first French Republic, and to the identical mischiefs which had resulted. Laxity of discipline, straggling, desertion, demagoguery in place of military spirit, giving commissions as the reward of mere recruiting, making new regiments instead of filling up the old ones, absence of proper staff corps,--every one of these things had been suffered in France till they could no longer be endured, and we had faithfully copied their errors without profiting by the lesson.

In the freedom of private correspondence with Mr. Chase I enlarged upon the same topics, and urged him to get the serious attention of the President and the cabinet to them. I gave him examples of the mischiefs that were done by the insane efforts to raise new regiments by volunteering when we ought to apply a conscription as the only fair way of levying a tax on the physical strength of the nation. I said: "I have known a lieutenant to be forced by his captain (a splendid soldier) to resign on account of his general inefficiency. I have seen that same lieutenant take the field a few months later as lieutenant-colonel of a new regiment, whilst the captain still stood at the head of his fraction of a company in the line. This is not a singular instance, but an example of cases occurring literally by the thousand in our vast army during the year past.... Governor Tod (of Ohio) said to me some time ago, with the deepest sorrow, that he was well aware that in raising the new regiments by volunteering, the distribution of offices to the successful recruiters was filling the army with incompetent men whom we should have to sift out again by such process as we could!.... Have we time for the sifting process? Even if we had, how inefficient the process itself when these officers have their commissions in their pockets, and cannot be brought before a court or a military commission till much of the mischief they can do is accomplished, bad habits amongst the soldiers formed, and the work of training them made infinitely more difficult than with absolutely raw recruits. It was in view of such probable results that I expressed the hope that no more new regiments would be raised by volunteering, when, in July last, the levy of an additional force was mooted. It seemed to me that the President could well say to the world, 'Our people have shown abundant proof of their enthusiasm in support of the government by volunteering already to the number of more than half a million, a thing unprecedented in the world's history: we now, as a matter of military expediency, call for a draft to fill up the broken battalions.'" [Footnote: From private letter of Jan. 1, 1863.]

I urged with equal frankness the need of giving unity to the army by abolishing the distinction between regulars and volunteers, and by a complete reorganization of the staff. I said it seemed absurd that with nearly a million of men in the field, the Register of the Army of the United States should show an organization of some twenty regiments only, of which scarce a dozen had been in active service. "If a volunteer organization is fit to decide the great wars of the nation, is it not ridiculous to keep an expensive organization of regulars for the petty contests with Indians or for an ornamental appendage to the State in peace?" The thing to be aimed at seemed to me to be to have a system flexible enough to provide for the increase of the army to any size required, without losing any of the advantage of character or efficiency which, in any respect, pertained to it as a regular army. Circumstances to which I have already alluded, probably prevented Mr. Chase from taking any active part again in the discussion of army affairs in the cabinet. Probably many of the same ideas were urged upon the President from other quarters, for there was much agitation of the subject in the army and out of it. But nothing came of it, for even the draft, when it became the law, was used more as a shameful whip to stimulate volunteering than as an honorable and right way to fill the ranks of the noble veteran regiments. General Sherman found, in 1864, the same wrong system thwarting his efforts to make his army what it should be, and broke out upon it in glorious exasperation. [Footnote: Letter to Halleck, Sept. 4, 1864. "To-morrow is the day for the draft, and I feel more interested in it than in any event that ever transpired. I do think it has been wrong to keep our old troops so constantly under fire. Some of these old regiments that we had at Shiloh and Corinth have been with me ever since, and some of them have lost seventy per cent in battle. It looks hard to put these brigades, now numbering less than 800 men, into battle. They feel discouraged, whereas, if we could have a steady influx of recruits, the living would soon forget the dead. The wounded and sick are lost to us, for once at a hospital, they become worthless. It has been a very bad economy to kill off our best men and pay full wages and bounties to the drift and substitutes." Official Records, vol. xxxviii. pt. v. p. 793.]

CHAPTER XXI

FAREWELL TO WEST VIRGINIA--BURNSIDE IN THE DEPARTMENT OF THE OHIO

Desire for field service--Changes in the Army of the Potomac--Judgment of McClellan at that time--Our defective knowledge--Changes in West Virginia--Errors in new organization--Embarrassments resulting--Visit to General Schenck--New orders from Washington--Sent to Ohio to administer the draft--Burnside at head of the department--District of Ohio--Headquarters at Cincinnati--Cordial relations of Governor Tod with the military authorities--System of enrolment and draft--Administration by Colonel Fry--Decay of the veteran regiments--Bounty-jumping--Effects on political parties--Soldiers voting--Burnside's military plans--East Tennessee--Rosecrans aiming at Chattanooga--Burnside's business habits--His frankness--Stories about him--His personal characteristics--Cincinnati as a border city--Rebel sympathizers--Order No. 38--Challenged by Vallandigham--The order not a new departure--Lincoln's proclamation--General Wright's circular.

My purpose to get into active field service had not slept, and soon after the establishment of a winter organization in the district, I had applied to be ordered to other duty. My fixed conviction that no useful military movements could be made across the mountain region implied that the garrisons of West Virginia should be reduced to a minimum and confined to the duty of defending the frontier of the new State. The rest of the troops might properly be added to the active columns in the field. McClellan had been relieved of command whilst I was conducting active operations in the Kanawha valley, and Burnside suffered his repulse at Fredericksburg within a few days after I was directed to make my headquarters at Marietta and perfect the organization of the district. I was therefore at a loss to choose where I would serve, even if I had been given carte blanche to determine my own work. Enough was known of the reasons for the President's dissatisfaction with McClellan to make me admit that the change of command was an apparent necessity, yet much was unknown, and the full strength of the President's case was not revealed till the war was over. My personal friendship for McClellan remained warm, and I felt sure that Hooker as a commander would be a long step downward. In private I did not hesitate to express the wish that McClellan should still be intrusted with the command of the Potomac army, that it should be strongly reinforced, and that by constant pressure upon its commander his indecision of character might be overcome. Those who were near to McClellan believed that he was learning greater self-confidence, for the Antietam campaign seemed a decided improvement on that of the Chickahominy. The event, in great measure, justified this opinion, for it was not till Grant took command a year later that any leadership superior to McClellan's was developed. Yet it must be confessed that we did not know half the discouragements that were weighing upon the President and his Secretary of War, and which made the inertia of the Eastern army demand a desperate remedy.

My personal affairs drifted in this way: the contest over the lists of promotions, of which I knew next to nothing, prevented any action on the request for a change of duty, and the close of the session of Congress brought the official notice that the promotion had expired by legal limitation. [Footnote: March 24th; received the 30th.] The first effect was naturally depressing, and it took a little time and some philosophy to overcome it; but the war was not ended yet, and reflection made the path of duty appear to be in the line of continued active service.

To form a new department for General Schenck, West Virginia was detached from the Department of the Ohio and annexed to Maryland. [Footnote: Official Records, vol. xxv. pt. ii. p. 145.] This was a mistake from a military point of view, for not only must the posts near the mountains be supplied and reinforced from the Ohio as their base, toward which would also be the line of retreat if retreat were necessary, but the frequent advances of the Confederate forces, through the Shenandoah valley to the Potomac, always separated the West from any connection with Baltimore, and made it impossible for an officer stationed there (as General Schenck was) to direct affairs in the western district at the very time of greatest necessity.

Another important fact was overlooked. The river counties of Ohio formed part of the district, and the depots on the river were supplied from Cincinnati. Not only was Gallipolis thus put in another department from the posts directly dependent on that depot as a base of supplies and the principal station for hospitals, but the new boundary line left me, personally, and my headquarters in the Department of the Ohio. I at once called the attention of the War Department to these results, sending my communication in the first instance through General Wright. He was in the same boat with myself, for his rank had also been reduced on the 4th of March, but he thought the intention must have been to transfer me with the district to the Eastern Department. On this I wrote to Washington direct, asking for definite orders. I also wrote to General Schenck, telling him of General Wright's supposition that I was transferred with the district, and inquiring if he had any definite decision of the question. [Footnote:Id., pp. 159, 160.]

About the 3d of April I was directed to report in person to General Schenck at Baltimore, [Footnote: Id., p. 175.] and reached that city on the 4th. My relations with General Schenck had been, personally, cordial, and our friendship continued till his death, many years after the war. Whatever plans he may have had were set aside by orders from Washington, which met me at his headquarters, ordering me to report at Columbus, Ohio, to assist the governor in organizing the troops to be called out under the new enrolment and conscription law. This was accompanied by the assurance that this duty would be but temporary, and that my desire to be assigned to active field duty would then be favorably considered. It is not improbable that my report on army organization, which has been mentioned, had something to do with this assignment; but I did not ask permission to visit Washington, though within a couple of hours' ride of the capital, and hastened back to my assigned post. Besides my wish to cut my connection with West Virginia on general military theories of its insignificance as a theatre of war, my stay there would have been intolerable, since General Milroy, in whose judgment I had less confidence than in that of any of my other subordinates, was, by the curious outcome of the winter's promotions, the one of all others who had been put over my head. I could not then foresee the cost the country would pay for this in the next summer's campaign in the Shenandoah, but every instinct urged me to sever a connection which could bode no good. The reasonableness of my objection to serving as a subordinate where I had been in command was recognized, and the arrangement actually made was as acceptable as anything except a division in an active army.

It greatly added to my contentment to learn that General Burnside had been ordered to the Department of the Ohio, and would be my immediate superior. I hastened back to Marietta, closed up the business pending there, and went to Columbus on the 9th of April. The arrangement between Governor Tod and General Burnside proved to be the formation of the Military District of Ohio, including the whole State. I was placed in command of this district, reporting directly to the general, who himself conferred with the governor. My own relations to my superiors were thus made strictly military, which was a much pleasanter thing for me than direct connection with the civil authorities would be; for this involved a danger of cross-purposes and conflicting orders. Brigadier-General John S. Mason, an excellent officer, was ordered to report to me as my immediate subordinate in command of the camps and the post at Columbus, and before the end of the month Burnside directed me to fix my own headquarters at Cincinnati, where I could be in constant communication with himself. All this was done with the most cordial understanding between Burnside and the governor. Indeed, nothing could be more perfect than the genial and reasonable tone of Governor Tod's intercourse with the military officers stationed in Ohio.

My duties under the Enrolment Act turned out to be very slight. The Act (passed March 3, 1863) made, in general, each congressional district an enrolment district under charge of a provost-marshal with the rank of captain. A deputy provost-marshal supervised the enrolment and draft for the State, and the whole was under the control of the provost-marshal-general at Washington, Colonel James B. Fry. The law provided for classification of all citizens capable of military duty between the ages of twenty and forty-five, so as to call out first the unmarried men and those not having families dependent on them. The exemptions on account of physical defects were submitted to a board of three, of which the local provost-marshal was chairman, and one was a medical man. Substitutes might be accepted in the place of drafted men, or a payment of three hundred dollars would be taken in place of personal service, that sum being thought sufficient to secure a voluntary recruit by the government. The principal effect of this provision was to establish a current market price for substitutes.

The general provisions of the law for the drafting were wise and well matured, and the rules for the subordinate details were well digested and admirably administered by Colonel Fry and his bureau. It was a delicate and difficult task, but it was carried out with such patience, honesty, and thoroughness that nothing better could be done than copy it, if a future necessity for like work should arise. There was no good ground for complaint, and in those cases where, as in New York, hostile political leaders raised the cry of unfairness and provoked collision between the mob and the National authorities, the victims were proved to be the dupes of ignorance and malice. The administration of the law was thoroughly vindicated, and if there were to be a draft at all, it could not be more fairly and justly enforced.

There was room for difference of opinion as to some of the provisions of the law regarding exemption and substitution, but the most serious question was raised by the section which applied to old regiments and which had nothing to do with the enrolment and draft. This section directed that when regiments had become reduced in numbers by any cause, the officers of the regiment should be proportionately diminished. As new regiments were still received and credited upon the State's liability under the draft, it of course resulted that the old regiments continued to decay. A public sentiment had been created which looked upon the draft as a disgrace, and the most extraordinary efforts were made to escape it. Extra bounties for volunteering were paid by counties and towns, and the combination of influences was so powerful that it was successful in most localities, and very few men were actually put in the ranks by the draft.

The offer of extra bounties to induce volunteering brought into existence "bounty-jumping," a new crime analogous to that of "repeating" at elections. A man would enlist and receive the bounty, frequently several hundred dollars, but varying somewhat in different places and periods. He would take an early opportunity to desert, as he had intended to do from the first. Changing his name, he would go to some new locality and enlist again, repeating the fraud as often as he could escape detection. The urgency to get recruits and forward them at once to the field, and the wide country which was open to recruiting, made the risk of punishment very small. Occasionally one was caught, and he would of course be liable to punishment as a deserter. The final report of the provost-marshal-general mentions the case of a criminal in the Albany penitentiary, New York, who confessed that he had "jumped the bounty" thirty-two times. [Footnote: Provost-Marshal-General's Report, p. 153.]

Another evil incidental to the excessive stimulus of volunteering was a political one, which threatened serious results. It deranged the natural political balance of the country by sending the most patriotic young men to the field, and thus giving an undue power to the disaffected and to the opponents of the administration. This led to the State laws for allowing the soldiers to vote wherever they might be, their votes being certified and sent home. In its very nature this was a makeshift and a very dubious expedient to cure the mischief. It would not have been necessary if we had had at an early day a system of recruiting that would have drawn more evenly from different classes into the common service of the country.

The military officers of the department and district had nothing to do with the enrolment and drafting, unless resistance to the provost-marshals should make military support for these officers necessary. We had hoped to have large camps of recruits to be organized and instructed, but the numbers actually drafted in Ohio, in 1863, were insignificant, for reasons already stated. Three or four very small post garrisons were the only forces at my command, and these were reduced to the minimum necessary to guard the prison camps and the depots of recruiting and supply.

General Burnside had not come West with a purpose to content himself with the retiracy of a department out of the theatre of actual war. His department included eastern Kentucky, and afforded a base for operations in the direction of East Tennessee. Mr. Lincoln had never lost his eagerness and zeal to give assistance to the loyal mountaineers, and had arranged with Burnside a plan of co-operation with Rosecrans by which the former should move from Lexington, Ky., upon Knoxville, whilst the latter marched from Murfreesboro, Tenn., upon Chattanooga. This was better than the impracticable plan of 1861, which aimed at the occupation of East Tennessee before Chattanooga had been taken, and the task was at last accomplished by the method now used. It was by no means the best or most economical method, which would have been to have but one strong army till Chattanooga were firmly in our hands, and then direct a subordinate column upon the upper Holston valley. It was utterly impossible to keep up a line of supply for an army in East Tennessee by the wagon roads over the mountains. The railroad through Chattanooga was indispensable for this purpose. But Mr. Lincoln had not fully appreciated this, and was discontented that both Buell and Rosecrans had in turn paid little attention, as it seemed, to his desire to make the liberation of East Tennessee the primary and immediate aim of their campaigns. He had therefore determined to show his own faith in Burnside, and his approval of the man, by giving him a small but active army in the field, and to carry out his cherished purpose by having it march directly over the Cumberland Mountains, whilst Rosecrans was allowed to carry out the plan on which the commanders of the Cumberland army seemed, in the President's opinion, too stubbornly bent.

Burnside's old corps, the Ninth, was taken from the Army of the Potomac and sent to Kentucky, and a new corps, to be called the Twenty-third, was soon authorized, to contain the Tennessee regiments which had been in General Morgan's command, and two divisions made up of new regiments organized in Ohio, Indiana, and Illinois under the last call for volunteers. To these were added several Kentucky regiments of different ages in service. General Parke, so long Burnside's chief of staff, was to command the Ninth Corps, and Major-General George L. Hartsuff was assigned to the Twenty-third. In a former chapter I have spoken of Hartsuff's abilities as a staff officer in West Virginia. [Footnote: Chap, vi., ante.] His qualities as a general officer had not been tried. He was wounded at the beginning of the engagement at Antietam, where he commanded a brigade in Hooker's corps. [Footnote: Chap, xv., ante.] That was his first service under his appointment as brigadier, and he had necessarily been out of the field since that time. My own expectation was that he would make an excellent reputation as a corps commander, but it was not his fortune to see much continuous field service. His health was seriously affected by his wounds, and after a short trial of active campaigning he was obliged to seek more quiet employment.

The establishment of my headquarters at Cincinnati threw me once more into close personal relations with Burnside, and enabled me to learn his character more intimately. His adjutant-general's office was on East Fourth Street, and most of the routine work was done there. The general had his own quarters on Ninth Street, where he had also an office for himself and his aides-de-camp. My own office and the official headquarters of the district were on Broadway below Fourth, in the house now occupied by the Natural History Society. There was thus near half a mile between us, though I was but a little way from the adjutant-general of the department, through whose office my regular business with the general went. Burnside, however, loved to discuss department affairs informally, and with the perfect freedom of unrestrained social intercourse. When he gave his confidence he gave it without reserve, and encouraged the fullest and freest criticism of his own plans and purposes. His decisions would then be put in official form by the proper officers of the staff, and would be transmitted, though I was nearly always personally aware of what was to be ordered before the formal papers reached me. He had very little pride of opinion, and was perfectly candid in weighing whatever was contrary to his predilections; yet he was not systematic in his business methods, and was quite apt to decide first and discuss afterward. He never found fault with a subordinate for assuming responsibility or acting without orders, provided he was assured of his earnest good purpose in doing so. In such cases he would assume the responsibility for what was done as cheerfully as if he had given the order. In like manner he was careless of forms himself, in doing whatever seemed necessary or proper, and might pass by intermediate officers to reach immediately the persons who were to act or the things to be done. There was no intentional slight to any one in this: it was only a characteristic carelessness of routine. Martinets would be exasperated by it, and would be pretty sure to quarrel with him. No doubt it was a bad business method, and had its mischiefs and inconveniences. A story used to go the rounds a little later that soldiers belonging to the little army in East Tennessee were sometimes arrested at their homes and sent back as deserters, when they would produce a furlough written by Burnside on a leaf of his pocket memorandum-book, which, as they said, had been given by him after hearing a pitiful story which moved his sympathies. Such inventions were a kind of popular recognition of his well-known neglect of forms, as well as of his kind heart. There was an older story about him, to the effect that, when a lieutenant in the army, he had been made post-quartermaster at some little frontier garrison, and that his accounts and returns got into such confusion that after several pretty sharp reminders the quartermaster-general notified him, as a final terror, that he would send a special officer and subject him and his papers to a severe scrutiny. As the story ran, Burnside, in transparent honesty, wrote a cordial letter of thanks in reply, saying it was just what he desired, as he had been trying hard to make his accounts up, but had to confess he could do nothing with them, but was sure such an expert would straighten them. In my own service under him I often found occasion to supply the formal links in the official chain, so that business would move on according to "regulations;" but any trouble that was made in this way was much more than compensated by the generous trust with which he allowed his name and authority to be used when prompt action would serve the greater ends in view.

My habit was to go to his private quarters on Ninth Street, when the regular business of the day was over, and there get the military news and confer with him on pending or prospective business affecting my own district. His attractive personality made him the centre of a good deal of society, and business would drop into the background till late in the evening, when his guests voluntarily departed. Then, perhaps after midnight, he would take up the arrears of work and dictate letters, orders, and dispatches, turning night into day. It not unfrequently happened that after making my usual official call in the afternoon, I had gone to my quarters and to bed at my usual hour, when I would be roused by an orderly from the general begging that I would come up and consult with him on some matter of neglected business. He was always bright and clear in those late hours, and when he buckled to work, rapidly disposed of it.

He did not indulge much in retrospect, and rarely referred to his misfortunes in the Army of the Potomac. On one or two occasions he discussed his Fredericksburg campaign with me. The delay in sending pontoons from Washington to Falmouth, which gave Lee time to concentrate at Fredericksburg, he reasonably argued, was the fault of the military authorities at Washington; but I could easily see that if his supervision of business had been more rigidly systematic, he would have made sure that he was not to be disappointed in his means of crossing the Rappahannock promptly. As to the battle itself he steadily insisted that the advance of Meade's division proved that if all the left wing had acted with equal vigor and promptness, Marye's heights would have been turned and carried. It is due to him to repeat that in such discussions his judgment of men and their motives was always kind and charitable. I never heard him say anything bitter, even of those whom I knew he distrusted.

At the time I am speaking of, Cincinnati was in a curious political and social condition. The advance through Kentucky of Bragg and Kirby Smith in the preceding year had made it a centre for "rebel sympathizers." The fact that a Confederate army had approached the hills that bordered the river had revived the hopes and the confidence of many who, while wishing success to the Southern cause, had done so in a vague and distant way. Now it seemed nearer to them, and the stimulus to personal activity was greater. There was always, in the city, a considerable and influential body of business men who were of Southern families; and besides this, the trade connections with the South, and the personal alliances by marriage, made a ground of sympathy which had noticeable effects. There were two camps in the community, pretty distinctly defined, as there were in Kentucky. The loyal were ardently and intensely so. The disloyal were bitter and not always restrained by common prudence. A good many Southern women, refugees from the theatre of active war, were very open in their defiance of the government, and in their efforts to aid the Southern armies by being the bearers of intelligence. The "contraband mail" was notoriously a large and active one.

Burnside had been impressed with this condition of things from the day he assumed command. His predecessor had struggled with it without satisfactory results. It was, doubtless, impossible to do more than diminish and restrain the evil, which was the most annoying of the smaller troubles attending the anomalous half-military and half-civil government of the department. Within three weeks from his arrival in Cincinnati, Burnside was so convinced of the widespread and multiform activity of the disloyal element that he tried to subdue it by the publication of his famous General Order No. 38. The reading of the order gives a fair idea of the hostile influences he found at work, for of every class named by him there were numerous examples. [Footnote: The text of the order is as follows:

"General Orders. No. 38.

HEADQUARTERS DEPARTMENT OF THE OHIO, CINCINNATI, OHIO, April 13, 1863.

The commanding general publishes, for the information of all concerned, that hereafter all persons found within our lines who commit acts for the benefit of the enemies of our country, will be tried as spies or traitors, and, if convicted, will suffer death. This order includes the following classes of persons: Carriers of secret mails; writers of letters sent by secret mails; secret recruiting officers within the lines; persons who have entered into an agreement to pass our lines for the purpose of joining the enemy; persons found concealed within our lines, belonging to the service of the enemy; and, in fact, all persons found improperly within our lines who could give private information to the enemy; and all persons within our lines who harbor, protect, conceal, feed, clothe, or in any way aid the enemies of our country. The habit of declaring sympathy for the enemy will not be allowed in this department. Persons committing such offences will be at once arrested with a view to being tried as above stated, or sent beyond our lines into the lines of their friends. It must be distinctly understood that treason, expressed or implied, will not be tolerated in this department. All officers and soldiers are strictly charged with the execution of this order, By command of Major-General Burnside, LEWIS RICHMOND, Assistant Adjutant General."]

It was no doubt true that the Confederate authorities had constant correspondence with people in the Northern States, and that systematic means were used to pass information and contraband merchandise through the lines. Quinine among drugs, and percussion caps among ordnance stores were the things they most coveted, and dealers in these carried on their trade under pretence of being spies for each side in turn. But besides these who were merely mercenary, there were men and women who were honestly fanatical in their devotion to the Confederate cause. The women were especially troublesome, for they often seemed to court martyrdom. They practised on our forbearance to the last degree; for they knew our extreme unwillingness to deal harshly with any of their sex. Personally, I rated the value of spies and informers very low, and my experience had made me much more prone to contempt than to fear of them. But examples had to be made occasionally; a few men were punished, a few women who belonged in the South were sent through the lines, and we reduced to its lowest practical terms an evil and nuisance which we could not wholly cure. The best remedy for these plots and disturbances at the rear always was to keep the enemy busy by a vigorous aggressive at the front. We kept, however, a species of provost court pretty actively at work, and one or two officers were assigned to judge-advocate's duty, who ran these courts under a careful supervision to make sure that they should not fall into indiscretions.

So long as the hand of military power was laid only on private persons who were engaged in overt acts of giving aid and comfort to the rebellion in the ways specified in Order No. 38, there was little criticism. But the time came when General Burnside seemed to be challenged by a public character of no little prominence to enforce his order against him. The Vallandigham case became the sensation of the day, and acquired a singular historical importance. The noise which was made about it seemed to create a current opinion that Burnside's action was a new departure, and that his Order No. 38 was issued wholly on his own responsibility. This was not so. In the preceding year, and about the time of his Emancipation Proclamation, the President had also proclaimed against treasonable practices in very emphatic terms. He had declared that "all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by courts-martial or military commission." [Footnote: Messages and Papers of the Presidents, vol. vi. p. 98. See also Order No. 42 of General Burbridge, commanding District of Kentucky. Official Records, vol. xxxix. pt. ii. p. 27.]

Burnside's order was in strict accordance with this authority, and he had no ultimate responsibility for the policy thus proclaimed. He was simply reiterating and carrying out in his department the declared purpose of the administration. Even in the matter of newspaper publications, his predecessor, General Wright, had felt obliged, upon Bragg and Kirby Smith's invasion of Kentucky, to put a stop to treasonable editorials and to the publication of military information likely to benefit the enemy. He issued a circular on September 13, 1862, notifying the publishers of the Cincinnati papers that the repetition of such offence would be immediately followed by the suppression of the paper and the arrest and confinement of the proprietors and writers. [Footnote: Official Records, vol. xvi. pt. ii. p. 514. See a characteristic letter by Sherman on this subject, Id., vol. xxxi. pt. i. p. 765: "Now I am again in authority over you, and you must heed my advice. Freedom of speech and freedom of the press, precious relics of former history, must not be construed too largely. You must print nothing that prejudices government or excites envy, hatred, and malice in a community. Persons in office or out of office must not be flattered or abused. Don't publish an account of any skirmish, battle, or movement of an army, unless the name of the writer is given in full and printed. I wish you success; but my first duty is to maintain 'order and harmony.'" (To editors of "Memphis Bulletin.")] It is necessary to keep these facts in mind if we would judge fairly of Burnside's responsibility when it was his fortune to apply the rule to a case attracting great public attention.

CHAPTER XXII

THE VALLANDIGHAM CASE--THE HOLMES COUNTY WAR

Clement L. Vallandigham--His opposition to the war--His theory of reconstruction--His Mount Vernon speech--His arrest--Sent before the military commission--General Potter its president--Counsel for the prisoner--The line of defence--The judgment--Habeas Corpus proceedings--Circuit Court of the United States--Judge Leavitt denies the release--Commutation by the President--Sent beyond the lines--Conduct of Confederate authorities--Vallandigham in Canada--Candidate for Governor--Political results--Martial law--Principles underlying it--Practical application--The intent to aid the public enemy--The intent to defeat the draft--Armed resistance to arrest of deserters, Noble County--To the enrolment in Holmes County--A real insurrection--Connection of these with Vallandigham's speeches--The Supreme Court refuses to interfere--Action in the Milligan case after the war--Judge Davis's personal views--Knights of the Golden Circle--The Holmes County outbreak--Its suppression--Letter to Judge Welker.

Clement L. Vallandigham had been representative in Congress of the Montgomery County district of Ohio, and lived at Dayton. He was a man of intense and saturnine character, belligerent and denunciatory in his political speeches, and extreme in his views. He was the leader in Ohio of the ultra element of opposition to the administration of Mr. Lincoln, and a bitter opponent of the war. He would have prevented the secession of the Southern States by yielding all they demanded, for he agreed with them in thinking that their demands for the recognition of the constitutional inviolability of the slave system were just. After the war began he still advocated peace at any price, and vehemently opposed every effort to subdue the rebellion. To his mind the war was absolutely unconstitutional on the part of the national government, and he denounced it as tyranny and usurpation. His theory seemed to be that if the South were "let alone," a reconstruction of the Union could be satisfactorily effected by squelching the anti-slavery agitation, and that the Western States, at any rate, would find their true interest in uniting with the South, even if the other Northern States should refuse to do so. Beyond all question he answered to the old description of a "Northern man with Southern principles," and his violence of temper made it all a matter of personal hatred with him in his opposition to the leaders of the party in power at the North. His denunciations were the most extreme, and his expressions of contempt and ill-will were wholly unbridled. He claimed, of course, that he kept within the limits of a "constitutional opposition," because he did not, in terms, advise his hearers to combine in armed opposition to the government.

About the first of May he addressed a public meeting at Mount Vernon in central Ohio, where, in addition to his diatribes against the Lincoln administration, he denounced Order No. 38, and Burnside as its author. His words were noted down in short-hand by a captain of volunteers who was there on leave of absence from the army, and the report was corroborated by other reputable witnesses. He charged the administration with designing to erect a despotism, with refusing to restore the Union when it might be done, with carrying on the war for the liberation of the blacks and the enslavement of the whites. He declared that the provost-marshals for the congressional districts were intended to restrict the liberties of the people; that courts-martial had already usurped power to try citizens contrary to law; that he himself would never submit to the orders of a military dictator, and such were Burnside and his subordinates; that if those in authority were allowed to accomplish their purposes, the people would be deprived of their liberties and a monarchy established. Such and like expressions, varied by "trampling under his feet" Order No. 38, etc., made the staple of his incendiary speech.

When the report was made to Burnside and he had satisfied himself of its substantial truth, he promptly accepted the challenge to test the legality of his order, and directed the arrest of Mr. Vallandigham. It was characteristic of him that he did not consult with his subordinates or with lawyers. He did not even act through my district organization, but sent his own aide-de-camp with a guard to make the arrest at Dayton. My recollection is that I did not know of the purpose till it was accomplished. His reason for direct action, no doubt, was that if there were many links in the chain of routine, there were multiplied chances of failure. He did not want to be baffled in the arrest, or to give the opportunity for raising a mob, which there would be if his purposes were to become known in advance,

The arrest was made in the early morning of the 5th of May, before dawn, and the prisoner was brought to Cincinnati. He was at first taken under guard to the Burnet House, where he breakfasted, and was then put in the military prison connected with the houses used as barracks for the troops in the city. A military commission had been ordered on the 21st of April from Department Headquarters for the trial of the classes of offenders named in Order No. 38, and of this commission Brigadier-General R. B. Potter of the Ninth Corps was President. General Potter was a distinguished officer throughout the war. He was a brother of Clarkson N. Potter, the prominent lawyer and Democratic member of Congress later, and both were sons of the Episcopal Bishop Potter of Pennsylvania. The character of the whole court was very high for intelligence and standing. Before this court Mr. Vallandigham was arraigned on the charge of publicly expressing sympathy with those in arms against the government, and uttering disloyal sentiments and opinions with intent to weaken the power of the government in its efforts to suppress the rebellion.

Vallandigham consulted with the Hon. George E. Pugh and others as his counsel, and then adopted the course of protesting against the jurisdiction of the court and against the authority for his arrest. His grounds were that he was not amenable to any military jurisdiction, and that his public speech did not constitute an offence known to the Constitution and laws. To avoid the appearance of waiving the question of jurisdiction, his counsel did not appear, though offered the opportunity to do so, and Mr. Vallandigham cross-examined the witnesses himself, and called those who testified for him. The question of fact raised by him was that he had not advised forcible resistance to the government, but had urged action at the elections by defeating the party in power at the polls. That he did not in terms advocate insurrection was admitted by the judge advocate of the court, but the commission were persuaded that the effect of his speech was intended and well calculated to be incendiary, and to arouse any kind of outbreak in sympathy with the armed enemies of the country. The trial ended on the 7th of May, but the judgment was not promulgated till the 16th, proceedings in habeas corpus having intervened. The finding of the court was that the prisoner was guilty, as charged, and the sentence was close confinement in Fort Warren, Boston harbor, during the continuance of the war.

On the 9th of May Mr. Pugh made application to the United States Circuit Court, Judge Leavitt sitting, for a writ of habeas corpus directed to General Burnside, in order that the lawfulness of Mr. Vallandigham's arrest and trial might be tested. The court directed notice of the application to be given to the general, and set the 11th for the hearing. The case was elaborately argued by Mr. Pugh for the prisoner, and by Mr. Aaron F. Perry and the District Attorney Flamen Ball for General Burnside. The hearing occupied several days, and the judgment of the court was given on the morning of the 16th. Judge Leavitt refused the writ on the ground that, civil war being flagrant in the land, and Ohio being under the military command of General Burnside by appointment of the President, the acts and offences described in General Order No. 38 were cognizable by the military authorities under the powers of war.

General Burnside had awaited the action of the court, and now promulgated the sentence under the judgment of the military commission. Three days later (May 19th) the President commuted the sentence by directing that Mr. Vallandigham be sent "under secure guard, to the headquarters of General Rosecrans, to be put by him beyond our military lines, and that in case of his return within our line, he be arrested and kept in close custody for the term specified in his sentence." This was done accordingly. The Confederate officials adopted a careful policy of treating him courteously without acknowledging that he was one of themselves, and facilities were given him for running the blockade and reaching Canada. There he established himself on the border and put himself in communication with his followers in Ohio, by whom he was soon nominated for the Governorship of the State.

The case, of course, excited great public interest, and was, no doubt, the occasion of considerable embarrassment to the administration. Mr. Lincoln dealt with it with all that shrewd practical judgment for which he was so remarkable, and in the final result it worked to the political advantage of the National cause. Sending Vallandigham beyond the lines took away from him the personal sympathy which might have been aroused had he been confined in one of the casemates of Fort Warren, and put upon him an indelible badge of connection with the enemies of the country. The cautious action of the Confederates in regard to him did not tend to remove this: for it was very apparent that they really regarded him as a friend, and helped him on his way to Canada in the expectation that he would prove a thorn in Mr. Lincoln's side. The President's proposal to the leading politicians who applied to him to rescind the sentence, that as a condition of this they should make certain declarations of the duty to support the government in a vigorous prosecution of the war, was a most telling bit of policy on his part, and took the sting entirely out of the accusations of tyranny and oppression.

It must be admitted, however, that the case was one in which the administration ought to have left Burnside wholly untrammelled in carrying out the proclamation of September 25, 1862, or should have formulated a rule for its military officers, so that they would have acted only in accordance with the wishes of the government, and in cases where the full responsibility would be assumed at Washington. When Burnside arrested Mr. Vallandigham, the Secretary of War telegraphed from Washington his approval, saying, "In your determination to support the authority of the government and suppress treason in your department, you may count on the firm support of the President." [Footnote: Official Records, vol. xxiii. pt. ii. p. 316.] Yet when a little later Burnside suppressed the "Chicago Times" for similar utterances, the President, on the request of Senator Trumbull, backed by prominent citizens of Chicago, directed Burnside to revoke his action. [Footnote: Id., pp. 385, 386.] This the latter did by General Order No. 91, issued on the 4th of June. He read to me on June 7th a letter from Mr. Stanton, which practically revoked the whole of his Order No. 38 by directing him not to arrest civilians or suppress newspapers without conferring first with the War Department. This would have been very well if it had been done at the beginning; but to have it come after political pressure from the outside, and in so marked contradiction to the approval first expressed, shows that there was no well-considered policy. It put Burnside himself in an intolerable position, and, of course, made him decline further responsibility for such affairs in his department. [Footnote: I do not find in the Official Records the letter of Mr. Stanton above referred to; but I speak of it from a written memorandum I made at the time.]

The whole question as to the right and the policy of military arrests and orders in such a time bristles with difficulties. Had I been consulted before Burnside took action, I should have advised him to collect carefully the facts and report them to Washington, asking for specific instructions. The subject called for directions which would be applicable in all the military departments which included States out of the theatre of active warlike operations; and such general directions should be given by the government. But Burnside was apt to act impulsively, and his impulse was to follow the bent of his ardent patriotism. He was stirred to burning wrath by what seemed to him an intent to give aid and comfort to the rebellion, and meant to punish such conduct without stopping to ask what complications might come of it.

I had found it desirable to form a judgment of my own with reference to the extent or limitation of military authority in the actual circumstances, and I quote the form in which I then cast it, so that I may not seem to be giving opinions formed after my own military duties were ended. I concluded, "First: That martial law operates either by reason of its proclamation by competent authority, or ex necessitate rei in the immediate theatre of military operations. Second; That when the struggle is in the nature of a revolution, and so long as the attempted revolution is in active progress, no definite limits can be given to the 'theatre of operations,' but the administration must be regarded as possessing a limited discretionary power in the use of martial law." As to the practical application of this power, "the presumptions are always in favor of the established civil law of the land, whenever and wherever it has a reasonable chance of unobstructed operation. In a State or portion of the country not the theatre of actual fighting, and where the civil courts are actually organized and working, there must be some strong reason for sending criminals or State prisoners before a military tribunal; such as that the government had reason to believe that a conspiracy was so powerful as to make an actual present danger of its overthrowing the loyal governments in some of the States before the civil courts could act in the ordinary process of business. In such a case, the arrest and admission to bail of the conspirators might be only the signal for their adherents to seize the reins of civil power, overthrow the courts, and consummate a revolution. The quick and summary action of military power would then be the only thing which could avert the danger. The justification of the use of a military tribunal depends on the existence of 'probable cause' for believing the public danger to be great."

I see no reason to change the form of stating the principle I then adopted. The limitations given it seem sufficient to secure proper caution in applying it, and will show that I thought then, as I do now, that the administration ought to have laid down rules by which the commandants of military departments could be guided, and which would have saved us from the weakness of acting with seeming vigor on one day, only to retreat from our position the next.

In Vallandigham's case the common argument was used by his friends that he was not exceeding a lawful liberty of speech in political opposition to the administration. When, however, a civil war is in progress, it is simply a question of fact whether words used are intended to give aid and comfort to the enemy and are evidence of conspiracy with the public enemy. If so, it is too clear for argument that the overt acts of the enemy are brought home to all who combine and confederate with them, and all are involved in the same responsibility. This question of fact and intent was officially settled by the findings of the military court. But there was another connection of the speech with overt acts, which the public mind took firm hold of. Among the most incendiary of Vallandigham's appeals had been those which urged the people to resist the provost-marshals in the several districts. It is nonsense to say that resisting the draft or the arrest of deserters only meant voting for an opposition party at the elections. There had been armed and organized resistance to arrest of deserters in Noble County just before his speech, and soon after it there was a still more formidable armed organization with warlike action against the enrolling officers in Holmes County, in the same region in which the speech was made. This last took the form of an armed camp, and the insurgents did not disperse till a military force was sent against them and attacked them in fortified lines, where they used both cannon and musketry. It did not seem plausible to the common sense of the people that we could properly charge with volleying musketry upon the barricades of the less intelligent dupes, whilst the leader who had incited and counselled the resistance was to be held to be acting within the limits of proper liberty of speech. Law and common sense are entirely in harmony in regarding the conspiracy as a unit, the speech at Mount Vernon and the armed collision on the Holmes County hill being parts of one series of acts in which the instigator was responsible for the natural consequences of the forces he set in motion.

To complete the judicial history of the Vallandigham case, it may be said that he applied to the Supreme Court of the United States a few months afterward for a writ to revise and examine the proceedings of the military commission and to determine their legality. The court dismissed his application on the ground that the writ applied for was not a legal means of bringing the proceedings of the military court under review. The charges and specifications and the sentence were all set forth in the application, so that the court was made officially aware of the full character of the case. This was naturally accepted at the time as practically sustaining the action of the President and General Burnside. When, however, the war was over, there was taken up to the Supreme Court the case of Milligan from Indiana, who had been condemned to death for treasonable conduct in aid of the rebellion, done as a member of the Knights of the Golden Circle, an organization charged with overt acts in attempting to liberate by force the Confederate prisoners of war in the military prisons, and otherwise to assist the rebellion. The current public sentiment in regard to executive power had unquestionably changed with the return to peace, and Lincoln having been assassinated and Johnson being in the presidential chair, the tide was running strongly in favor of congressional rather than executive initiative in public affairs. It cannot be denied that the court responded more or less fully to the popular drift, then as in other important historical junctures. In the opinion as delivered by Judge Davis, it went all lengths in holding that the military commission could not act upon charges against a person not in the military service, and who was a citizen of the State where tried, when in such State the civil courts were not actually suspended by the operations of war. Chief Justice Chase and three of the justices thought this was going too far, and whilst concurring in discharging Milligan, held that Congress could authorize military commissions to try civilians in time of actual war, and that such military tribunals might have concurrent jurisdiction with the civil courts. [Footnote: Ex parte Vallandigham, Wallace's Reports, i. 243. Ex parte Milligan, Id., iv. 2, etc.]

We must not forget that whilst the judicial action determines the rights of the parties in a suit, the executive has always asserted his position as an independent co-ordinate branch of the government, authorized by the Constitution to determine for himself, as executive, his duties, and to interpret his powers, subject only to the Constitution as he understands it. Jefferson, Jackson, and Lincoln in turn found themselves in exigencies where they held it to be their duty to decide for themselves on their high political responsibility in matters of constitutional power and duty. Lincoln suspended the privilege of habeas corpus by his own proclamation, and adhered to his view, although Judge Taney in the Circuit Court for Maryland denied his power to do so. When Congress passed a regulating act on the subject which seemed to him sufficient, he signed the statute because he was quite willing to limit his action by the provisions embodied in it, and not because he thought the act necessary to confer the power.

An incident in the history of the treasonable organizations believed to exist in Indiana emphasizes the change of mental attitude of Judge Davis between 1863 and 1866. During the progress of the Vallandigham case, General Burnside conceived a distrust of the wisdom of the course pursued by Brigadier-General Carrington, who commanded at Indianapolis, and sent Brigadier-General Hascall there to command that district. Carrington had been the right hand of Governor Morton in ferreting out the secrets of the Golden Circle, and applying Order No, 38 to them, but Burnside's lack of confidence in the cool-headed caution and judgment of his subordinate led him to make the change. Hascall was a brave and reliable Indiana officer, who had seen much active field service, and with whom I was associated in the Twenty-third Corps during the Atlanta campaign. He was ardently loyal, but an unexcitable, matter-of-fact sort of person. He did not suit Governor Morton, who applied to the Secretary of War to have him removed from command, declaring that immediate action was important. Judge Davis, who was in Indianapolis, was induced to co-operate with the governor in the matter, and telegraphed to Mr. Stanton that Hascall's removal was demanded by the honor and interests of the government. [Footnote: Official Records, vol. xxiii. pt. ii. p.369. See also Id., p.194.] Hascall was sent to the field, and after a short interval Carrington was restored to duty at Indianapolis. In the continued investigation and prosecution of the Golden Circle, and finally in the trial of Milligan, General Carrington was, under Governor Morton, the most active instrument; and it was, of course, to keep him at work on that line that the changes in command were secured. Yet it was the fruit of this very work of Carrington that was so strongly and sweepingly declared to be illegal by the Supreme Court, Judge Davis himself delivering the opinion and going beyond the chief-justice and others in denying all power and authority to military courts in such cases. Had Mr. Lincoln lived, he would no doubt have avoided any question before the Supreme Court in regard to his authority, by pardoning Milligan as he granted amnesty to so many who had been active in the rebellion. But Mr. Johnson was so much hampered by his quarrel with Congress over reconstruction that he was disposed to avoid interference with criminal cases where his action could subject him to the charge of sympathy with the accused. He carefully abstained from meddling with Jefferson Davis as he did with Milligan, and left the responsibility with the courts.

The final development of the investigation of the Society of the Golden Circle took place after I had again obtained a field command, and I was glad to have no occasion to form a personal judgment about it. The value of evidence collected by means of detectives depends so greatly on the character of the men employed and the instructions under which they act, that one may well suspend judgment unless he has more than ordinarily full knowledge on these points. The findings of the military commission must stand as a prima facie historical determination of the facts it reported, and the burden of proof is fairly upon those who assert that the conclusions were not sustained by trustworthy evidence.

I have mentioned the open resistance to the draft and to the arrest of deserters in Noble and in Holmes counties. The first of these was scarcely more than a petty riotous demonstration, which melted away before the officers as soon as they were able to show that they were backed by real power. The second looked for a time more formidable, and assumed a formal military organization. Governor Tod issued a proclamation warning the offenders of the grave consequences of their acts, and exhorting them for their own sake and the sake of their families to disperse and obey the laws. I directed General Mason at Columbus to be sure, if military force had to be used, that enough was concentrated to make stubborn resistance hopeless. The insurgents maintained a bold face till the troops were close upon them; but when they saw a strong line of infantry charging up toward the stone fences on the hillside where they had made their camp, and heard the whistling of bullets from the skirmishers, their courage gave way and they fled, every man for himself. Only two or three were seriously wounded, and comparatively few arrests were made. [Footnote: Official Records, vol. xxiii. pt. i. pp.395-397.] Submission to law was all that was demanded, and when this was fully established, the prisoners were soon released without further punishment. The fear of further prosecutions operated to preserve the peace, and the men who had been allowed to go at large were a guaranty, in effect, for the good behavior of the community.

Before dropping the subject, I may properly add that the arrest of Mr. Vallandigham very naturally raised the question how far we were willing to go in bringing disloyal men before the military courts. Prominent citizens, and especially men in official position, often found themselves urged to ask for the arrest of the more outspoken followers of Vallandigham in every country neighborhood. In answer to inquiries which had come through the Hon. Martin Welker, [Footnote: Afterward for many years Judge of the U. S. District Court for northern Ohio.] member of Congress for the Wayne County district, I wrote him a letter which shows the efforts we made to be prudent and to avoid unnecessary collisions. Judge Welker had served as Judge Advocate on my staff in the three months' service in the spring of 1861, and my intimacy with him made me speak as to our policy without reserve.

"We are hopeful," I wrote, "now that the United States Circuit Court has refused to release Mr. Vallandigham on habeas corpus, that his followers will take warning and that their course will be so modified that there may be no occasion to make many more arrests.

"I am persuaded that our policy should be to repress disloyalty and sedition at home rather by punishment of prominent examples than by a general arrest of all who may make themselves obnoxious to General Order No. 38, as the latter course will involve a more frequent application of military authority than we choose to resort to, unless circumstances should make it imperatively necessary... I am full of hope that the seditious designs of bad men will fail by reason of the returning sense of those who have been their dupes, and that the able and patriotic opinion of Judge Leavitt in the habeas corpus case will cause great numbers to take positive ground in favor of the government, who have hitherto been more or less under the influence of our northern traitors. If such shall be the result we can afford to overlook bygones, and I am inclined to await the development of public sentiment before following up Vallandigham's arrest by many others."

This letter was written before the Secretary of War made any limitation of Burnside's authority in enforcing his famous order, and shows that in the District of Ohio, at least, there was no desire to set up a military despotism, or to go further in applying military methods to conduct in aid of the rebellion than we might be forced to go.

Burnside's action in suppressing disloyal newspapers was not peculiar to himself. General Wright, his predecessor, had done the same, and other military commandants, both before and after and in other parts of the country, had felt obliged to take the same course. These facts only make more clear the desirability of a well-considered system of action determined by the government at Washington, and applicable to all such cases.

CHAPTER XXIII

BURNSIDE AND ROSECRANS--THE SUMMER'S DELAYS

Condition of Kentucky and Tennessee--Halleck's instructions to Burnside--Blockhouses at bridges--Relief of East Tennessee--Conditions of the problem--Vast wagon-train required--Scheme of a railroad--Surveys begun--Burnside's efforts to arrange co-operation with Rosecrans--Bragg sending troops to Johnston--Halleck urges Rosecrans to activity--Continued inactivity--Burnside ordered to send troops to Grant--Rosecrans's correspondence with Halleck--Lincoln's dispatch--Rosecrans collects his subordinates' opinions--Councils of war--The situation considered--Sheridan and Thomas--Computation of effectives--Garfield's summing up--Review of the situation when Rosecrans succeeded Buell--After Stone's River--Relative forces--Disastrous detached expeditions--Appeal to ambition--The major-generalship in regular army--Views of the President justified--Burnside's forces--Confederate forces in East Tennessee--Reasons for the double organization of the Union armies.

Burnside was not a man to be satisfied with quasi-military duty and the administration of a department outside of the field of active warfare. He had been reappointed to the formal command of the Ninth Corps before he came West, and the corps was sent after him as soon as transportation could be provided for it. He reached Cincinnati in person just as a raid into Kentucky by some 2000 Confederate cavalry under Brigadier-General John Pegram was in progress. Pegram marched from East Tennessee about the middle of March, reaching Danville, Ky., on the 23d. He spread reports that he was the advance-guard of a large force of all arms intending a serious invasion of the State. These exaggerations had their effect, and the disturbance in the Department of the Ohio was out of proportion to the strength of the hostile column. [Footnote: Letter of Governor Robinson, Official Records, vol. xxiii. pt. ii. p. 97; Id., pp. 121, 126.] The troops belonging to the post at Danville retreated to the hither side of the Kentucky River at Hickman's Bridge, where they took up a defensive position. They saved the railway bridge from destruction, and Brigadier-General Quincy A. Gillmore, who commanded the District of Central Kentucky with headquarters at Lexington, was able to concentrate there a sufficient force to resume the offensive against Pegram.

Burnside ordered reinforcements to Gillmore from the other parts of Kentucky, and Pegram, whose report indicates that a foray for beef, cattle, and horses was the principal object of his expedition, commenced his retreat. Gillmore followed him up vigorously, recapturing a considerable part of the cattle he had collected, and overtaking his principal column at Somerset, routed him and drove him beyond the Cumberland River.

The month of March had begun with pleasant spring weather, and on the 15th General Wright had written to Halleck that an invasion of Kentucky was probable, especially as Rosecrans showed no signs of resuming the aggressive against Bragg's army in middle Tennessee. [Footnote: Id., p. 143.] In Halleck's letter of instructions to Burnside as the latter was leaving Washington to relieve Wright, the general plan of an advance on East Tennessee in connection with that of Rosecrans toward Chattanooga was outlined, but the General-in-Chief acknowledged that the supply of an army in East Tennessee by means of the wagon roads was probably impracticable. [Footnote: Id., p. 163.] He pointed out the necessity of reducing the number and size of garrisons in the rear, and making everything bend to the great object of organizing the army for active initiative against the enemy. He recommended building block-houses to protect the principal bridges on the railroads, where very small garrisons could give comparative security to our lines of communication. This plan was ultimately carried out on a large scale, and was the necessary condition of Sherman's Atlanta campaign of 1864. Taken as a whole, Halleck's instructions to Burnside presented no definite objective, and were a perfunctory sort of introduction to his new command, which raises a doubt whether the organization of a little army in the Department of the Ohio met his approval.

The fact was that Burnside was acting on an understanding with President Lincoln himself, whose ardent wish to send a column for the relief of the loyal people of East Tennessee never slumbered, and who was already beginning to despair of its accomplishment by Rosecrans's army. The uneasiness at Washington over Rosecrans's inaction was becoming acute, and Mr. Lincoln was evidently turning to Burnside's department in hope of an energetic movement there. In this hope Burnside was sent West, and the Ninth Corps was detached from the Army of the Potomac and sent after him. The project of following up his advance by the construction of a railroad from Danville, then the terminus of the railway line reaching southward from Cincinnati, was discussed, and the President recommended it to Congress, but no appropriation of money was made. The scheme was hardly within the limits of practicable plans, for the building of a railway through such difficult country as the Cumberland mountain region implied laborious engineering surveys which could only be made when the country was reduced to secure possession, and the expenditure of time as well as of money would be likely to exceed the measure of reasonable plans for a military campaign. The true thing to do was to push Rosecrans's army to Chattanooga and beyond. With the valley of the Tennessee in our possession, and Chattanooga held as a new base of supply for a column in East Tennessee as well as another in Georgia, the occupation of Knoxville and the Clinch and Holston valleys to the Virginia line was easy. Without it, all East Tennessee campaigns were visionary. It was easy enough to get there; the trouble was to stay. Buell's original lesson in logistics, in which he gave the War Department a computation of the wagons and mules necessary to supply ten thousand men at Knoxville, was a solid piece of military arithmetic from which there was no escape. [Footnote:Ante, p. 199. Official Records, vol. vii. p. 931.]

When Burnside reached Cincinnati and applied himself practically to the task of organizing his little army for a march over the mountains, his first requisitions for wagons and mules were a little startling to the Quartermaster-General and a little surprising to himself. He began at once an engineering reconnoissance of the country south of Lexington and Danville, as far as it was within our control, and employed an able civil engineer, Mr. Gunn, to locate the preliminary line for a railway. [Footnote: Id., vol. xxiii. pt. ii. p. 610.] These surveys were the starting-points from which the actual construction of the road between Cincinnati and Chattanooga was made after the close of the war.

Burnside also urged that the troops in Kentucky, exclusive of the Ninth Corps, be organized into a new corps with General Hartsuff as its commander. [Footnote: Id., p. 259.] Halleck demurred to this, but the President directed it to be done, and the order was issued by the War Department on 27th April. [Footnote: Id., pp. 269, 283, 400.] Burnside also applied himself earnestly to procuring from Rosecrans a plan of active co-operation for an advance. As soon as Hartsuff assumed command of the new Twenty-third Corps, Burnside sent him, on May 3d, to visit Rosecrans in person, giving him authority to arrange an aggressive campaign. [Footnote: Id., p. 312.] Hartsuff's old relations to Rosecrans made him a very fit person for the negotiation. Rosecrans hesitated to decide, and called a council of his principal officers. He suggested that the Ninth Corps be sent down the Louisville and Nashville Railroad to Glasgow, near the Tennessee line, but did not indicate any immediate purpose of advancing. [Footnote: Official Records, vol. xxiii. pt. ii. pp. 313, 315.] Burnside meant to take the field with both corps of his command, which he had organized under the name of the Army of the Ohio; but to reassure Rosecrans, he wrote that if in co-operation the two armies should come together, he would waive his elder rank and serve under Rosecrans whilst he should remain in middle Tennessee. [Footnote: Id., p. 331.] It was now the 15th of May, and he sent a confidential staff officer again to Rosecrans to try to settle a common plan of operations. On the 18th Halleck had heard of Bragg's army being weakened to give General Joseph E. Johnston a force with which to relieve Pemberton at Vicksburg, and he became urgent for both Rosecrans and Burnside to advance. [Footnote:Id., p. 337.] He thought it probable that raids would be attempted by the enemy to distract attention from his real object, and pointed out concentration and advance as the best way to protect the rear as well as to reach the enfeebled adversary. Burnside hastened in good faith his preparations for movement. He was collecting a pack mule train to supply the lack of wagons, and put his detachments in motion to concentrate. He begged for the third division of his corps (Getty's), which had been detained in the Army of the Potomac and could not yet be spared, but did not wait for it. [Footnote:Id., p. 338.] By the 1st of June he was ready to leave in person for the front, and on the 3d was at Lexington, definitely committed to the movement into East Tennessee. There he was met by an order from Halleck to send 8000 men at once to reinforce General Grant at Vicksburg. [Footnote: Id., p. 384.] The promise was made that they should be returned as soon as the immediate exigency was over, but the order was imperative. Burnside never hesitated in obedience. The two divisions of the Ninth Corps made about the number required, and they were immediately turned back and ordered to the Ohio River to be shipped on steamboats. Sorely disappointed, Burnside asked that he might go with his men, but was told that his departmental duties were too important to spare him from them. [Footnote: Official Records, vol. xxiii. pt. ii. pp. 384, 386.] Major-General Parke was therefore sent in command of the corps. Burnside returned to Cincinnati, grieving at the interruption of his plans, yet hoping it would not be for long. His duties at the rear were not agreeable, especially as this was just the time when he was directed to recall his order suppressing disloyal newspapers, and to refrain from arrests of civilians without explicit authority from Washington.

We may safely assume that the President and his War Secretary were as little pleased at having to order the Ninth Corps away as Burnside was to have them go. In fact the order was not made till they entirely despaired of making Rosecrans advance with the vigor necessary to checkmate the Confederates. On the receipt of Halleck's dispatch of the 18th May, Rosecrans entered into a telegraphic discussion of the probable accuracy of Halleck's information, saying that whatever troops were sent by the enemy to Mississippi were no doubt sent from Charleston and Savannah and not from Bragg. [Footnote:Id., p. 337.] He insisted that it was not good policy to advance at present. On the 21st he said, "If I had 6000 cavalry in addition to the mounting of the 2000 now waiting horses, I would attack Bragg within three days." [Footnote: Id., p. 351.] He also interposed the unfavorable judgment of his corps commanders in regard to an advance. Military history shows that this is pretty uniformly an excuse for a delay already fully resolved on by a commanding general. Halleck had no more cavalry to send, and could only say so. Burnside notified Rosecrans on the 22d that his columns had begun the movements of concentration and that they would be complete in three or four days. [Footnote: Official Records, vol. xxiii. pt. ii. p. 355.] On the 28th Mr. Lincoln himself telegraphed Rosecrans, "I would not push you to any rashness, but I am very anxious that you do your utmost, short of rashness, to keep Bragg from getting off to help Johnston against Grant." [Footnote: Id., p. 369.] Rosecrans curtly answered, "Dispatch received. I will attend to it." In his dispatches to Mr. Stanton of similar date there is no intimation of any purpose whatever to move. [Footnote: Ibid.] In telegraphing to Burnside, Rosecrans said that he was only waiting for the development of the former's concentration, and that he wished to advance by the 4th of June. [Footnote:Id., pp. 372, 376.] Burnside had already informed him that he would be ready by June 2d, and repeated it. On the date last named Rosecrans telegraphed Burnside that his movement had already begun, and that he wanted the Army of the Ohio to come up as near and as quickly as possible. [Footnote: Id., p. 381.] Still he gave no intimation to the authorities at Washington of an advance, for none had in fact been made by his army, nor even of any near purpose to make one. On June 3d, Halleck telegraphed him: "Accounts received here indicate that Johnston is being heavily reinforced from Bragg's army. If you cannot hurt the enemy now, he will soon hurt you." He followed this by his dispatch to Burnside ordering reinforcements to be sent to Grant, and the remainder of the troops in the Department of the Ohio to be concentrated defensively in Kentucky. [Footnote:Id., pp. 383, 384.] The only move that Rosecrans made was to send on the 8th to his general officers commanding corps and divisions, a confidential circular asking their opinion in writing in answer to the following questions, in substance,--

1. Has the enemy been so materially weakened that this army could advance on him at this time with strong reasonable chances of fighting a great and successful battle?

2. Is an advance of our army likely to prevent additional reinforcements being sent against General Grant by Bragg?

3. Is an immediate or early advance of our army advisable? [Footnote: Official Records, vol. xxiii. pt. ii. p. 395.]

With substantial unanimity they answered that it was not advisable to move, though they seem generally to have been aware that Breckinridge with about 10,000 men of all arms had gone from Bragg to Johnston. When Rosecrans reported the result of this council to Halleck, the latter reminded him of the maxim that "councils of war never fight," and that the responsibility for his campaign rests upon a commanding general and cannot be shared by a council of war.

The careful study of the correspondence elicited by Rosecrans's circular would make a most valuable commentary upon the theme, "Why Councils of War never fight." The three questions were addressed to sixteen general officers commanding corps and divisions. [Footnote: Their answers are found in Official Records, vol. xxiii. pt. ii. as follows: Davis, p. 395, Johnson, do., McCook, 396, Turchin, 397, Brannan, 402, Crittenden, 403, Granger, 403, Wood, 405, Negley, 407, Palmer, do., Reynolds, 409, Rousseau, 410, Sheridan, 411, Stanley, 412, Thomas, 414, Van Cleve, 415, Mitchell, 417, and Garfield's summing up, 420.] In reading the responses the impression grows strong that there was what may be called a popular feeling among these officers that their duty was to back up their commanding general in a judgment of his on the subjects submitted, which could hardly be other than well known. On the question as to the probable reduction of Bragg's army by detachments sent to Johnston, whilst they nearly all have some knowledge of the diminution of the Confederate army to about the extent mentioned above, most of them answer that they do not think it a material weakening, that being the tenor of the inquiry put to them. Some of them, however, say very naturally that as the secret service is managed from headquarters and all the information received is forwarded there, General Rosecrans should be much better able to answer this question than his subordinates. As to the second part of that question, nearly all seem to assume that the battle would be in the nature of a direct attack on the fortifications at Shelbyville and are not sanguine of a successful result. The few who speak of turning manoeuvres feel that the further retreat of Bragg would only lengthen their own line of communications and do no good. Strangely, too, they argue, many of them, that an advance would not prevent further depletion of Bragg to strengthen Johnston. They consequently and almost unanimously advise against an immediate or early advance.

It is instructive to compare these opinions with the actual facts. The inaction of the summer had led directly to the detachment of two divisions of infantry and artillery and one of cavalry to reinforce Johnston, just as the inactivity of Meade later in the season encouraged the Richmond government to send Longstreet to Bragg from Virginia. If Rosecrans had moved early in the season, not only must Bragg have kept his army intact, but the battle of Chickamauga, if fought at all, must have been decided without Longstreet, and therefore most probably with brilliant success for our arms. It was delay in advancing, both in Tennessee and in Virginia, that thus directly led to disaster. If a brilliant victory at Chickamauga had been coincident with the fall of Vicksburg and Lee's defeat at Gettysburg, it does not seem rash to believe that the collapse of the Confederacy would have been hastened by a year.

Two of the generals who answered these questions attained afterward to such distinction that their replies are an interesting means of learning their mental character and gauging their development. Sheridan answered briefly that he believed Bragg had no more than 25,000 or 30,000 infantry and artillery, with a "large" cavalry force. In this he was very close to the mark. Bragg's report for the latter part of May, before sending reinforcements to Johnston, showed his forces present for duty to be 37,000 infantry, a little less than 3000 artillery, and 15,000 cavalry, in round numbers. Deduct 10,000 from these, and Sheridan is found to be sufficiently accurate. [Footnote: Official Records, vol. xxiii. pt. ii. p. 846.

The reference to Bragg's returns of strength to the Adjutant-General's office makes this an appropriate place to note the method of making these returns and its bearing on the much debated question of the "Effective Total" commonly given by Confederate writers as the force of their armies compared with ours. The blanks for these reports were sent out from the Adjutant-and-Inspector-General's office at Richmond, with the order that the numerical returns be made "on the forms furnished and according to the directions expressed on them" (General Orders No. 64, Sept. 8, 1862). The column "Effective Total" in these returns included only enlisted men carrying arms and actually in the line of battle. It excluded all officers, the non-commissioned staff, extra-duty men, the sick in hospital, and those in arrest. To secure uniformity in the method of reporting in his army and to correct some irregularity, General Bragg issued a circular, as follows (Official Records, vol. xxiii. pt. ii. p. 619):--

[Circular.]

"HEADQUARTERS, ARMY OF TENNESSEE, TULLAHOMA, January 29, 1863.

Hereafter, under the column of 'Effective Total' in the reports from this army, extra-duty men and men in arrest will not be included. The 'Effective Total' must include only the fighting field force--those who are carried into the field of battle with fire-arms in their hands.

By command of General Bragg. GEORGE WM. BRENT, Assistant Adjutant-General."

Before the publication of the Official Records, I had occasion to call attention to the subject: see "The Nation," May 21, 1874, p. 334; also "Atlanta" (Scribners' Series), pp. 27, 28; and again in "The Nation," February 2, 1893, p. 86. A fair comparison between the Confederate and the National armies, therefore, demands a computation of numbers by the same method; and as we did not use forms containing the "Effective Total" as reported by the Confederates, the columns of officers and men "present for duty" which are computed alike in the returns on both sides are the most satisfactory and fair basis of comparison.] He did not think Bragg would fight, but would retreat, and thought that in such a case he would not be hindered from sending more help to Johnston. Again, as forage in the country was scarce, he voted against an early advance.