JANUARY 30, 2019
THE LITERATURE ON the American Civil War is endless. Scholars estimate that on average one book about the war has been published every day since the war ended — about 60,000 since 1865. Even the most minor battles have a volume or two explaining the mistakes and successes of the combatants. The number of trees felled to print all the tomes on the great battles — Gettysburg, Shiloh, Vicksburg, and Antietam — easily exceeds the number of human casualties in each battle. There are shelves of books on the great generals and heroes, and countless books about minor military figures. There are some significantly interesting and important books about a few famous brigades — most notably the 54th Massachusetts (the Glory Brigade), the Iron Brigade, or the Stonewall Bridge. However, there are also a numbing quantity of books about regiments, brigades, or even companies that almost no one remembers. We have biographies of almost all the major political leaders and most of the minor ones, and endless analyses of political campaigns from just before the war until the end of Reconstruction. There are enough books on the naval war to sink a small ship.
So, is there anything more to say about the Civil War? Peter Charles Hoffer not only thinks there is, but has actually found something new, interesting, and important to discuss. That in itself is an accomplishment. In his new book, Uncivil Warriors, Hoffer, a distinguished and stunningly prolific historian at the University of Georgia, looks at how lawyers contributed to the coming conflict, shaped the issues, and helped prosecute the war.
This is not a book about traditional military battles or equipment. We learn nothing about the value of repeating rifles, ironclad ships, or close order drills. There is little about overall strategy or battlefield tactics. Rather, we learn about the role of lawyers in the military and civilian governments, the nature and structure of arguments on both sides of the conflict, and to some extent (I wish there were more of this) the way law affected military policy.
Much of the book is about how law shaped the arguments leading to secession and public policy during the war. Hoffer dissects speeches by Lincoln, Stephen A. Douglas, Alexander Stephens, and Thomas R. R. Cobb as though they were legal arguments presented to a jury — in this case, the jury was the voting public. That politicians made lawyerly arguments is hardly surprising. In Antebellum America, lawyers often entered politics. Of our first 16 presidents, ending with Lincoln, only four — Washington, Madison, Harrison, and Taylor — had not practiced law (Madison studied law but was never admitted to practice). Furthermore, because politics was often a part-time job — legislatures at the state and federal level only met for a few months of each year — elected officials had to continue their law practices to survive. Lincoln’s cabinet resembled a law firm. Of the 13 men who served in his cabinet only one — Secretary of War Simon Cameron, who served just 10 months — was not also a lawyer. Many in the cabinet were distinguished and successful attorneys, including Secretary of State William H. Seward, Secretary of the Treasury Salmon P. Chase, Secretary of War Edwin M. Stanton, Secretary of the Navy Gideon Welles, Postmaster General Montgomery Blair, and Attorney General Edward Bates. Only two of Jefferson Davis’s cabinet members (Secretary of the Treasury George Trenholm and Secretary of State William Browne) were not lawyers — and Browne went on to study law after the war. However, unlike Lincoln, Davis was not a lawyer. Among Davis’s many faults and failures as a leader was his inability to persuade an audience or even his colleagues. Unlike Lincoln, he had not spent much of his life convincing juries to side with him. Lincoln’s skill as an advocate, as Hoffer shows, was not just in persuasion. It was also in structuring logical and clear arguments.
Hoffer shows how many of the issues of the war — like the propriety or legality of secession, suspension of habeas corpus, conscription, and emancipation — were essentially legal. The Civil War was fought in part because the majority of Americans were unwilling to see their constitution trampled by people who were traitors to the nation. Seeing the legal issues set out helps us understand not only the role of law in politics, but also that Americans — especially those who remained loyal to their constitution and their country — saw secession as both illegal in the common sense of the term and treasonous. Reading Hoffer’s discussions of the legalistic arguments of politicians on the eve of secession and the war reminds us of how sophisticated those leaders were — and how attentive the electorate was to ideas and ideals. Obviously, this is a great lesson for our own time, but it is important to understand that Hoffer is writing history and not trying to shape a historical narrative for a presentist political purpose. That is to his credit.
More surprising is how many lawyers were involved in the war, not as politicians or in the civilian sectors of the United States and the Confederacy, but as military leaders. Jubal Early, a West Point–trained officer, notorious for his violation of the modern rules of warfare (more about this in a moment) was also a lawyer. Early is just one of the many lawyer-generals that dot this book, and he is hardly the only surprise lawyer. Many readers will be surprised to learn that Major General William Tecumseh Sherman was also a lawyer. Indeed, one of Hoffer’s important contributions is that he sets out in an impressive manner the presence of lawyers in positions of command. Many were like Major General Henry Halleck, a West Pointer who left the Army to become a lawyer, and then returned to the Army when the war began.
This phenomenon, as far as I know, was not replicated in any other American war. It may in part be a function of the easy access to the bar in Antebellum America. West Pointers were educated men, and with just a bit of hard work, especially on the frontier, they could read a little law and open a practice. Some, like Halleck, were successful and became clear legal thinkers; others, like Sherman, were indifferent to the law. But as Hoffer shows, their legal training came in handy. Despite myths of “Sherman’s March to the Sea” as a lawless rampage across the heart of the Southern slaveocracy, Sherman rigorously enforced rules against looting civilian property — as opposed to confiscating animals, weapons, and food that were legitimately seized for military purposes. Sherman the lawyer understood these clear legal distinctions, and not a few US Army soldiers ended their careers before firing squads for their egregious looting. On the Confederate side was the lawyer general Jubal Early, who led his troops in the Gettysburg campaign and openly violated all accepted rules of war, by purposely burning civilian property for revenge and kidnapping and enslaving free black citizens of Pennsylvania. Such behavior was considered a form of land piracy by this time and was a throwback to the actions of Roman legions in the ancient world. Hoffer’s book would have been stronger had he delved into the failure of a lawyer like Early to obey the law of war and civilized behavior (including the rules adopted by the Confederacy). On the other hand, Hoffer correctly (and importantly) shows that Sherman “evinced an almost autocratic faith in law and order.”
In addition to officers turned lawyers, who then became generals, there were a plethora of lawyer/politicians who became generals. Unlike later wars, the Civil War had a huge number of politicians with stars on their shoulders. Many had been lawyers before the war. For example, both Howell Cobb, a former governor of Georgia, and his younger brother Thomas R. R. Cobb, who had been the reporter for the Georgia Supreme Court, were generals in the Confederate Army. T. R. R. Cobb was one of the most distinguished lawyers in his state, the only Southerner to write a treatise on the law of slavery, and the co-founder of what later became the University of Georgia Law School. He left the classroom to organize “Cobb’s Legion,” only to die at Fredericksburg. They were matched by men like Benjamin F. Butler, Nathaniel Banks, and the future presidents Rutherford B. Hayes, James A. Garfield, Chester A. Arthur, and Benjamin Harrison, all lawyers with political ambitions before they became generals.
Hoffer admires his lawyer politicians and generals, but I think sometimes fails to see that many of them, especially in the Confederacy, seemed to forget their legal training and their previous fidelity to the rule of law. Hoffer claims that Alexander Stephens “labored almost incessantly to bring about an honorable peace.” But “honorable” peace is a misleading term for a man who explained before the war that the Confederacy was “founded […] its foundations are laid, its corner- stone rests, upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition.” Furthermore, Hoffer asserts that “the war was horrific, but constrained.” He argues that this constraint resulted from “the influence of the lawyers.” This might be true about some parts of the war — and it seems certainly true for the United States Army, which adopted a new and more profound set of rules, known as the “Lieber Code,” which constrained military behavior. Indeed, as I have already noted, soldiers under General Sherman were executed under that code for looting civilian property.
But the claim for “honor” and “constraint” for Southern lawyers, politicians, and generals is less persuasive. Consider John A. Campbell, who resigned from the United States Supreme Court to support the rebellion. It is hard to find a more competent lawyer. But in his position as the Assistant Secretary of War under Jefferson Davis, he did nothing to stop (much less punish) the murder of black troops who attempted to surrender to Confederate forces, the enslavement of captured black soldiers, the enslavement of northern black civilians, or the absolute refusal of the Confederacy to exchange black POWs. All of these behaviors violated every known rule of civilized warfare at the time. Rather, the lawyer Campbell supported his boss, Secretary of War James Seddon (also a lawyer), who ignored (and thus implicitly supported) some of these behaviors, and personally ordered others, such as the enslavement of captured black troops. This was the behavior reminiscent of the armies of the Roman Empire that enslaved or murdered captured enemy soldiers and civilians. But no army had behaved this way for many centuries. One wonders how this behavior squared with the legal training of Seddon, Campbell, General Early, or Confederate Vice President Stevens. It is worth remembering that at Nuremberg German generals, such as Alfred Jodl, were executed for enslaving POWs. Similarly, other Nazis, such as Labor Minister Ernst Fritz Sauckel, were prosecuted (and executed) for enslaving civilians. Such behavior violated the law of war in the 19th century, just as it did in the 20th century. But, the obvious illegality of enslaving civilians and POWs seemed to elude the Confederate lawyer politicians and generals just as it eluded Nazis in the 20th century. Just as the Nazis would do in Eastern Europe, the Confederates, led by lawyers, engaged in the wholesale kidnapping of free blacks in Maryland and Pennsylvania and the enslavement of POWs. Hoffer unfortunately does not address this ignominious history of Confederate lawyers.
An alternative use of the law, which Hoffer discusses, concerns the creative response of US Army Major General Benjamin F. Butler to the arrival of three fugitive slaves at Fortress Monroe in Virginia. A Confederate major, under a flag of truce, tried to retrieve these three men under the Fugitive Slave Clause of the US Constitution and the Fugitive Slave Law of 1850, claiming they “belonged” to his colonel. Butler, a successful lawyer before the War, concluded that the slaves were “contrabands of war,” and could not be returned. Butler further noted that “the fugitive slave act did not affect a foreign country, which Virginia claimed to be and she must reckon it one of the infelicities of her position that in so far at least she was taken at her word.” It is hard to imagine a more brilliant use of the law in the Civil War.
Butler’s “contraband policy” — what Lincoln humorously called “Butler’s fugitive slave law” — quickly became military policy. More importantly, it led to the most legally significant moment of the war — the Emancipation Proclamation. What Butler could do for three slaves, Lincoln would ultimately do for more than three million. In the process, Lincoln became the most important lawyer in the war, and perhaps in American history.