Military Reminiscences of the Civil War V1
Jacob Dolson Cox

Part 8 out of 9

This brings me to the subject of Congressional action in the matter
of the promotions and appointments in the army during this winter
session which closed the Thirty-seventh Congress. By it I was myself
to suffer the one severe disappointment of my military career. The
time was one of great political excitement, for the fall elections
had resulted in a great overturning in the Congressional
delegations. The Democrats had elected so many representatives for
the Thirty-eighth Congress that it was doubtful whether the
administration would be able to command a majority in the House. The
retirement of McClellan from the command had also provoked much
opposition, and in the lack of full knowledge of the reasons for
displacing him, political ones were imagined and charged. Public
policy forbade the President to make known all his grounds of
dissatisfaction with the general, and many of his own party openly
questioned his wisdom and his capacity to govern. Men whose
patriotism cannot be questioned shared in this distrust, and in
their private writings took the most gloomy view of the situation
and of the future of the country. This was intensified when Burnside
was so bloodily repulsed at Fredericksburg at the close of the first
week of the session. [Footnote: Mr. W. P. Cutler, Representative
from Ohio, a modest but very intelligent and patriotic man, wrote in
his diary under December 16th: "This is a day of darkness and peril
to the country... Lincoln himself seems to have no nerve or decision
in dealing with great issues. We are at sea, and no pilot or
captain. God alone can take care of us, and all his ways _seem_ to
be against us and to favor the rebels and their allies the
Democrats. Truly it is a day of darkness and gloom." "Life and
Times" of Ephraim Cutler, with biographical sketches of Jervis
Cutler and W. P. Cutler, p.296.]

As is usual in revolutionary times, more radical measures were
supposed by many to be the cure for disasters, and in caucuses held
by congressmen the supposed conservatism of Mr. Lincoln and part of
his cabinet was openly denounced, and the earnestness of the army
leaders was questioned. [Footnote: Mr. Cutler reports a caucus of
the House held January 27th, in which "Mr. ---- stated that the great
difficulty was in holding the President to anything. He prided
himself on having a divided cabinet, so that he could play one
against the other... The earnest men are brought to a deadlock by
the President. The President is tripped up by his generals, who for
the most part seem to have no heart in their work." _Id_., p.301.
Mr. Cutler himself expresses similar sentiments and reiterates: "It
really seems as if the ship of state was going to pieces in the
storm." "How striking the want of a leader. The nation is without a
head." "The true friends of the government are groping around
without a leader," etc. _Id_., pp. 297, 301,302] Much of this was a
misunderstanding of the President and of events which time has
corrected, but at the moment and in the situation of the country it
was natural. It strongly affected the conduct of the federal
legislators, and must be taken into the account when we try to
understand their attitude toward the army and the administration of
military affairs.

In the Senate, at a very early day after the opening of the session,
Mr. Wilson, chairman of the Committee on Military Affairs, offered a
resolution (which passed without opposition) calling upon the
Secretary of War for "the number and names of the major-generals and
brigadier-generals in the service of the United States, and where
and how they are employed." [Footnote: Senate Journal, 3d Session,
37th Congress, Dec. 8, 1862.] This was, no doubt, the offspring of
an opinion in vogue in Congress, that the President had gone beyond
the authority of law in the number of these officers he had
appointed. If this were true, the course taken was not a friendly
one toward the administration. The whole list of appointments and
promotions would be submitted to the Senate for confirmation, and if
the statutory number had been exceeded, that body could stop
confirming when it reached the legal limit. There were, of course,
frequent consultations between the Congressional committees or the
individual members and the Secretary of War; but whatever efforts
there may have been to reach a quiet understanding failed. On the
21st of January, the Secretary not having responded to Mr. Wilson's
resolution, Mr. Rice of Minnesota offered another (which also passed
by unanimous consent), directing the Secretary of War "to inform the
Senate whether any more major and brigadier generals have been
appointed and paid than authorized by law; and if so, how many; give
names, dates of appointment and amounts paid." [Footnote: _Id_.,
Jan. 21, 1863.]

Two days later the Secretary sent in his reports in response to both
resolutions. To the first he replied that the interests of the
public service would not permit him to state "where and how" the
general officers were employed, but he gave the list of names. He
gave also a separate list of six major-generals who were not
assigned to any duty. [Footnote: These were McClellan, Frémont,
Cassius M. Clay, Buell (ordered before a military commission),
McDowell, and F. J. Porter (both before military courts in
connection with the second battle of Bull Run).] To the second
resolution he replied that "It is believed by this Department that
the law authorizing the increase of the volunteer and militia forces
necessarily implied an increase of officers beyond the number
specified in the Act of July 17, 1862, to any extent required by the
service, and that the number of appointments is not beyond such
limit." If the limit of the statute named were strictly applied, he
said there would be found to be nine major-generals and forty-six
brigadier-generals in excess. There had been no payments of
increased salary to correspond with the increased rank, except in
one instance. [Footnote: Executive Documents of Senate, 3d Session,
37th Congress, Nos. 21 and 22. The nine major-generals were Schuyler
Hamilton, Granger, Cox, Rousseau, McPherson, Augur, Meade, Hartsuff,
and N. B. Buford. If the number were thirteen, it would include
Foster, Parke, Schenck, and Hurlbut.] The list submitted showed
fifty-two major-generals in service, and one (Buford) was omitted,
so that if forty should prove to be the limit, there would be
thirteen in excess. This, however, was only apparently true, for the
Secretary's list included the four major-generals in the regular
army, whose case was not covered by the limitation of the statute.
This seems to have been overlooked in the steps subsequently taken
by members of Congress, and as the action was unwelcome to the
President, he did not enlighten the legislators respecting their
miscalculation. The business proceeded upon the supposition that the
appointments in the highest rank were really thirteen in excess of
the number fixed by the statute.

The state of the law was this. The Act of July 22, 1861, authorized
the President to call for volunteers, not exceeding half a million,
and provided for one brigadier-general for four regiments and one
major-general for three brigades. The Act of 25th July of the same
year authorized a second call of the same number, and provided for
"such number of major-generals and brigadier-generals as may in his
(the President's) judgment be required for their organization." In
the next year, however, a "rider" was put upon the clause in the
appropriation bill to pay the officers and men of the volunteer
service, which provided "that the President shall not be authorized
to appoint more than forty major-generals, nor more than two hundred
brigadier-generals," and repealed former acts which allowed more.
[Footnote: The several acts referred to may be found in vol. xii. U.
S. Statutes at Large, pp. 268, 274, 506. The appropriation bill was
passed July 5, 1862. The date July 17, 1862, in the Secretary's
report seems to be a misprint.] This limit just covered those who
had been appointed up to the date of the approval of the
appropriation bill. Two questions, however, were still open for
dispute. First, whether a "rider" upon the appropriation should
change a general law on the subject of army organization, and
second, whether the new limit might not allow appointments to be
_thereafter_ made to the extent of the numbers stated. The report of
Mr. Stanton evidently suggests such questions.

The matter was now in good shape for what politicians call "a deal,"
and negotiations between members of Congress and the executive were
active. The result appears to have been an understanding that a bill
should be passed increasing the number of general officers, so as
not only to cover the appointments already made, but leaving a
considerable margin of new promotions to be filled by arrangement
between the high contracting parties. On the 12th of February, 1863,
the Senate passed a bill providing for the appointment of twenty
major-generals of volunteers and fifty brigadiers. This was not
acceptable to the House. The battle of Stone's River had lately been
fought in Tennessee, and representatives from the West were urgent
in arguing that affairs near Washington unduly filled the view of
the administration. There was some truth in this. At any rate the
House amended the bill so as to increase the numbers to forty
major-generals and one hundred brigadiers, to be made by promotions,
for meritorious service, from lower grades. As soon as it was known
that the Military Committee of the House would report such an
amendment, it was assumed that the Senate would concur, and a
"slate" was made up accordingly. On the hypothesis that the list of
major-generals was thirteen in excess of the forty fixed by statute,
a new list of twenty-seven was made out, which would complete the
forty to be added by the new bill. A similar list was prepared for
the brigadiers and precisely similar negotiations went on, but for
brevity's sake I shall confine myself to the list for the highest
rank, in which I was personally concerned.

The House passed the amended bill on the 27th of February, and it
went back to the Senate for concurrence in the amendments. But now
an unexpected difficulty arose. The Senate refused to concur in the
changes made by the House. It matters little whether the senators
were offended at the determination of the lower House to have so
large a share in the nominations, or desired to punish the President
for having gone beyond the letter of the law in his promotions of
1862; the fact was that they voted down the amendments. A committee
of conference between the two houses was appointed, and a compromise
report was made fixing the additional number of major-generals at
thirty and of brigadiers at seventy-five. Both Houses finally
concurred in the report, the bill went to the President on the 1st
of March, and he signed it on the next day.

There was but a single working-day of the session left, for the
session must end at noon of the 4th of March. The list must be
reduced. The manner in which this was done clinches the proof, if
there had been any doubt before, that the list of twenty-seven was
the result of negotiations with congressmen. No meddling with that
list was permitted, though the use of patronage as "spoils" had some
very glaring illustrations in it. The President had to make the
reduction from his own promotions made earlier, and which were
therefore higher on the list and in rank, instead of dropping those
last added, as had seemed to be demanded by the earlier action of
Congress. The only exception to this was in the case of General
Schofield, whose even-handed administration of the District of
Missouri and army of the frontier had excited the enmity of extreme
politicians in that State and in Kansas, led by Senator "Jim" Lane,
the prince of "jay-hawkers." Schofield was dropped from the

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

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

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.]



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

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

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

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

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.

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,
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

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.



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

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

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

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.



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

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

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.

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):--


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.
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.

Thomas did not believe Bragg had been materially weakened, for if
any troops had been sent away, he thought they had returned or their
places had been supplied. He concluded that Bragg was ready to fight
with an army at least as large as that of Rosecrans; that to hold
our army where it was would sufficiently prevent further reduction
of Bragg's; that an advance would give the latter the advantage and
was not advisable. His preference for defensive warfare was very
evident. He said it was true that Bragg might be reinforced and take
the initiative, but that he "should be most happy to meet him here
with his reinforcements." In conclusion he indicated the necessity
of 6000 more cavalry to be added to the army. [Footnote: See also
_ante_, p. 478.]

When the answers were all received, Garfield summed them up in a
paper, which must be admitted to be a remarkable production for a
young volunteer officer deliberately controverting the opinions of
such an array of seniors. He gave, as the best information at
headquarters, the force of Bragg, before sending help to Johnston,
as 38,000 infantry, 2600 artillery, and 17,500 cavalry. This made
the infantry about 1000 too many, the artillery nearly exactly
right, and the cavalry 2500 too many,--on the whole a very close
estimate. From these he deducted 10,000, which was right. He stated
Rosecrans's force at 82,700 "bayonets and sabres" with about 3000
more on the way, but deducted 15,000 for necessary posts and
garrisons. The balancing showed 65,000 to throw against Bragg's
41,500. He further showed that delay would give time for the enemy's
detachments to return, whilst we could hope for no further increase
during the rest of the season. He then analyzed the military and
civil reasons for activity, declared that he believed we could be
victorious, and that the administration and the country had the
right to expect the army to try.

The result was a curious but encouraging result of bold and cogent
reasoning. Although Rosecrans reported to General Halleck on the
11th of June the opinion of his corps and division commanders
against an early advance, the logic and the facts pressed upon him
by his chief of staff evidently took strong hold of his active
intellect, so that when Halleck on the 16th asked for a categorical
answer whether he would make an immediate movement forward, he
replied, "If it means to-night or to-morrow, no. If it means as soon
as all things are ready, say five days, yes." [Footnote: Official
Records, vol. xxiii. pt. i. pp. 8-10.] No doubt the rather plain
intimation that a categorical "no" would be followed by action at
Washington helped the decision; but it would have helped it to a
decided negative if Garfield's paper, reinforced by the personal
advice and oral discussions which we now know were of daily
occurrence between them, had not had a convincing weight with him,
both as to the feasibility of the campaign of turning manoeuvres
which he devised and adopted, and as to its probable success. The
result is reckoned one of his chief claims to military renown.

But to judge properly the relations of the government to both the
commanding generals in Kentucky and Tennessee, it is necessary to go
back to the days immediately after the battle of Stone's River, and
to inquire what were the tasks assigned these commanders and the
means furnished to perform them. The disappointment of the
administration at Washington with Rosecrans's conduct of his
campaign dated, indeed, much earlier than the time indicated. He had
succeeded Buell at the end of October when Bragg was in full retreat
to the Tennessee River. The continuance of a vigorous pursuit and
the prompt reoccupation of the country held by us in the early
summer was regarded as of the utmost importance for political, quite
as much as for military reasons. It was not a time to halt and
reorganize an army. The question of foreign intervention was
apparently trembling in the balance, and to let European powers rest
under the belief that we had lost most of what had been gained in
the advance from Donelson to Shiloh and Corinth, was to invite
complications of the most formidable character. The Washington
authorities had therefore a perfect right to decide that to press
Bragg vigorously and without intermission was the imperative duty of
the commander of the Army of the Cumberland. He would be rightly
held to have disappointed the expectations of his government if he
failed to do so. Rosecrans had been chosen to succeed Buell because
of the belief that his character was one of restless vehemence
better adapted to this work than the slower but more solid qualities
of Thomas, who was already second in command in that army.
[Footnote: Since the text was written the Life of O. P. Morton has
appeared, and in it his part in the change from Buell to Rosecrans
is given. He urged the change upon Lincoln on the ground that
aggressive vigor was imperatively demanded. "Another three months
like the last six, and we are lost," said he. "Reject the wicked
incapables whom you have patiently tried and found utterly wanting."
On October 24th he telegraphed, "The removal of General Buell and
the appointment of Rosecrans came not a moment too soon." Life, vol.
i. pp. 197, 198.] Halleck was obliged very soon to remind Rosecrans
of this, and to claim the right of urging him onward because he
himself had given the advice which had been decisive when the
question of the choice was under consideration.

Yet as soon as the army was again concentrated about Nashville,
Rosecrans's correspondence took the form of urgent demands for the
means of reorganization. He insisted that his cavalry force must be
greatly increased, that he must have repeating arms for his
horsemen, that he must organize a selected corps of mounted infantry
and obtain horses for them--in short, that he must take months to
put his army in a condition equal to his desires before resuming the
work of the campaign. His energy seemed to be wholly directed to
driving the administration to supply his wants, whilst Bragg was
allowed not only to stop his rather disorganized flight, but to
retrace his steps toward middle Tennessee.

On the 4th of December Halleck telegraphed that the President was so
disappointed and dissatisfied that another week of inaction would
result in another change of commanders. [Footnote: Official Records,
vol. xx. pt. ii. p. 118.] Rosecrans replied detailing his
necessities, but taking a high tone and declaring himself insensible
to threats of removal. The next day Halleck patiently but decidedly
gave the reasons which made the demand for activity a reasonable
one, adding the reminder that no one had doubted that Buell would
eventually have succeeded, and that Rosecrans's appointment had been
made because they believed he would move more rapidly. [Footnote:
_Id_., p. 124.] Meanwhile every effort was made to furnish him with
the arms, equipments, and horses he desired.

The battle of Stone's River had many points of resemblance to that
of Antietam, and like that engagement was indecisive in itself, the
subsequent retreat of the Confederates making it a victory for the
national arms. The condition of the Army of the Cumberland after the
battle was a sufficient reason for some delay, and a short time for
recuperation and reinforcement was cordially accepted by everybody
as a necessity of the situation. Congratulations and thanks were
abundantly showered on the army, and promotions were given in more
than common number. It was not concealed, however, that the
government was most anxious to follow up the success and to make the
delays as short as possible. An aggressive campaign was demanded,
and the demand was a reasonable one because the means furnished were
sufficient for the purpose.

At the close of the month of January, Rosecrans's forces present for
duty in his department numbered 65,000, [Footnote: _Id_., vol.
xxiii. pt. ii. p. 29.] the Confederates under Bragg were 40,400.
[Footnote: _Id_., p. 622.] The end of February showed the National
forces to be 80,000, [Footnote: Official Records, vol. xxiii. pt.
ii. p. 93.] the enemy 43,600. [Footnote: _Id_., p. 654.] After this
Bragg's army gradually increased till midsummer, when it reached a
maximum of about 57,000, and Rosecrans's grew to 84,000. The
Confederates had a larger proportion of cavalry than we, but this
was at the expense of being much weaker in infantry, the decisive
arm in serious engagements. In fact this disproportion was another
reason for active work, since experience showed that the enemy kept
his cavalry at home when he was vigorously pushed, and sent them on
raids to interrupt our communications when we gave him a respite.
Our superiority in numbers was enough, therefore, to make it
entirely reasonable and in accord with every sound rule of
conducting war, that the government should insist upon an active and
aggressive campaign from the earliest day in the spring when the
weather promised to be favorable. Such weather came at the beginning
of March, and the Confederates took advantage of it, as we have
seen, by sending Pegram into Kentucky. Their cavalry under Wheeler
attacked also Fort Donelson, but were repulsed. A reconnoissance by
a brigade under Colonel Coburn from Franklin toward Spring Hill
resulted in the capture of the brigade by the Confederates under Van
Dorn. [Footnote: _Id_., p. 115.] In the same month Forrest made a
daring raid close to Nashville and captured Colonel Bloodgood and
some 800 men at Brentwood. [Footnote: _Id_., pp. 171, 732.]
Rosecrans organized a raid by a brigade of infantry mounted on
mules, commanded by Colonel Streight, with the object of cutting the
railroad south of Chattanooga. It was delayed in starting till near
the end of April, and was overtaken and captured near Rome in
Georgia. [Footnote: _Id_., pp. 232, 321.] These exasperating
incidents were occurring whilst the Army of the Cumberland lay still
about Murfreesboro, and its commander harassed the departments at
Washington with the story of his wants, and intimated that nothing
but carelessness as to the public good stood between him and their
full supply. He was assured that he was getting his full share of
everything which could be procured,--rifles, revolvers, carbines,
horses, and equipments,--but the day of readiness seemed as far off
as ever.

On the 1st of March the President, feeling that the time had come
when his armies should be in motion, and plainly discouraged at the
poor success he had had in getting Rosecrans ready for an advance,
authorized General Halleck to say to him that there was a vacant
major-generalcy in the regular army which would be given to the
general in the field who should first win an important and decisive
victory. [Footnote: Official Records, vol. xxiii. pt. ii. p. 95.]
The appeal to ambition was treated as if it had been an insult. It
was called an "auctioneering of honor," and a base way to come by a
promotion. [Footnote: _Id_., p. 111.] Halleck retorted conclusively
that Rosecrans himself had warmly advocated giving promotion in the
lower grades only for distinguished services in the field, and said:
"When last summer, at your request, I urged the government to
promote you for success in the field, and, again at your request,
urged that your commission be dated back to your services in West
Virginia, I thought I was doing right in advocating your claim to
honors for services rendered." [Footnote: _Id_., p. 138.] In view of
this unique correspondence it is certainly curious to find Rosecrans
a few days later enumerating his personal grievances to Mr. Lincoln,
and putting among them this, that after the battle of Stone's River
he had asked "as a personal favor" that his commission as
major-general of volunteers should be dated back to December, 1861,
and that it was not granted. [Footnote: _Id_., p. 146.] It was
considerably antedated, so as to make him outrank General Thomas,
much to the disgust of the latter when he learned it; but the date
was not made as early as Rosecrans desired, which would have made
him outrank Grant, Buell, and Burnside as well as Thomas.


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