Battle Cry of Freedom: The Civil War Era (89 page)

turned out to have some loopholes, however. A drafted man could hire a substitute from the pool of "persons not liable for duty"—men outside the specified age group or immigrant aliens. The practice of buying substitutes had deep roots in European as well as American history. Men called into militia service in previous wars, including the Revolution, had been allowed to send substitutes. Even the
levée en masse
of the French Revolution permitted substitution. This practice was based on an assumption that the talents of men who could afford substitutes might be of more value on the homefront, organizing and producing the matériel of war, than in the army. But recognizing that substitution would not exempt all men necessary for behind-the-lines duty, Congress on April 21 passed a supplementary law specifying several exempt categories: Confederate and state civil officials, railroad and river workers, telegraph operators, miners, several categories of industrial laborers, hospital personnel, clergymen, apothecaries, and teachers. Congress resisted planter pressure to exempt overseers—but that issue would rise again.

Some of these exemptions created a potential for fraud. Many new schools sprang up as the teaching profession enjoyed a remarkable growth. Scores of apothecary shops suddenly appeared stocked with "a few empty jars, a cheap assortment of combs and brushes, a few bottles of 'hairdye' and 'wizard oil' and other Yankee nostrums." Governors who opposed conscription increased the number of exempt civil servants. Governors Joseph Brown of Georgia and Zebulon Vance of North Carolina showed special ingenuity in this regard: these two states accounted for 92 percent of all state officials exempted from the draft. Brown insisted that militia officers were included in this category, and proceeded to appoint hundreds of new officers. A Confederate general sarcastically described a Georgia or North Carolina militia regiment as containing "3 field officers, 4 staff officers, 10 captains, 30 lieutenants, and 1 private with a misery in his bowels."
¹⁰

Hiring a substitute was the most controversial form of exemption. Rich men could buy their way out of the army whether or not their skills were needed at home. This gave rise to a bitter saying: "A rich man's war but a poor man's fight." Some poor men, however, might become rich—if they survived—by selling themselves as substitutes.

10
.
Columbus [Ga.] Weekly Sun
, Sept. 2, 1862, and D. Harvey Hill, both quoted in Albert B. Moore,
Conscription and Conflict in the Confederacy
(New York, 1924), 56, 71n.

"Substitute brokers" established a thriving business. Many substitutes deserted as soon as they could, and sold themselves again—and again, and again. One man in Richmond was said to have sold himself thirty times. The price of substitutes rose by late 1863 to as high as $6,000 (the equivalent of $300 in gold, or three years' wages for a skilled workingman). The abuses of substitution became so obnoxious that Congress abolished the privilege in December 1863.

The main purpose of conscription was to stimulate volunteering by the threat of coercion rather than by its actual use. Thus the law allowed thirty days for potential draftees to avoid the stigma of the draft by volunteering. If they did so, they could join new regiments and elect their officers just as the volunteers of 1861 had done. Conscripts and substitutes, by contrast, were assigned to existing regiments. To a degree this carrot and stick method worked. During 1862 the total number of men in the Confederate army increased from about 325,000 to 450,000. Since about 75,000 men were lost from death or wounds during this period, the net gain was approximately 200,000. Fewer than half of these new men were conscripts and substitutes; the remainder were considered volunteers even though their motives for enlisting may not have been unalloyed patriotism.

Despite its success in getting more men into the army, conscription was the most unpopular act of the Confederate government. Yeoman farmers who could not buy their way out of the army voted with their feet and escaped to the woods or swamps. Enrollment officers met bitter resistance in the upcountry and in other regions of lukewarm or nonexistent commitment to the Confederacy. Armed bands of draft-dodgers and deserters ruled whole counties. Conscription represented an unprecedented extension of government power among a people on whom such power had rested lightly in the past. Even some soldiers, who might have been expected to welcome a law that forced slackers to share their hardships, instead considered it a repudiation of what they were fighting for. A Virginia private branded conscription "so gross a usurpation of authority . . . such a surrender of the right for which above all others we are now contending [that it] would go far to make me renounce my allegiance." A North Carolina soldier reflected that "when we hear men comparing the despotism of the
Confederacy
with that of the Lincoln government—
something must be wrong
."
¹¹

11
. Bell Irvin Wiley,
The Road to Appomattox
(Memphis, 1956), 56–57.

Conscription dramatized a fundamental paradox in the Confederate war effort: the need for Hamiltonian means to achieve Jeffersonian ends. Pure Jeffersonians could not accept this. The most outspoken of them, Joseph Brown of Georgia, denounced the draft as a "dangerous usurpation by Congress of the reserved rights of the States . . . at war with all the principles for which Georgia entered into the revolution."
¹²
In reply, Jefferson Davis donned the mantle of Hamilton. The Confederate Constitution, he pointed out to Brown, gave Congress the power "to raise and support armies" and to "provide for the common defence." It also contained another clause (likewise copied from the U.S. Constitution) empowering Congress to make all laws "necessary and proper for carrying into execution the foregoing powers." Brown had denied the constitutionality of conscription because the Constitution did not specifically authorize it. This was good Jeffersonian doctrine, sanctified by generations of southern strict constructionists. But in Hamiltonian language, Davis insisted that the "necessary and proper" clause legitimized conscription. No one could doubt the necessity "when our very existence is threatened by armies vastly superior in numbers." Therefore "the true and only test is to enquire whether the law is intended and calculated to carry out the object. . . . If the answer be in the affirmative, the law is constitutional."
¹³

Most southerners probably agreed with Davis about this—especially if they lived in Virginia or western Tennessee or Mississippi or Louisiana, which unlike Georgia were threatened by invasion in 1862. "Our, business now is to whip our enemies and save our homes," declared the
Richmond Enquirer
. "We can attend to questions of theory afterwards."
¹⁴
The draft was upheld by every court in which it was tested—including the supreme court of Georgia, which approved it unanimously.

Nevertheless, disaffection remained a serious problem. Another divisive controversy blew up over the question of martial law. This matter became an embarrassment to Davis. In his February 22 inaugural address he had contrasted the Confederacy's refusal "to impair personal liberty or the freedom of speech, of thought, or of the press" with Lincoln's

12
.
O. R
., Ser. 4, Vol. 1, pp. 1156, 1116.

13
. Rowland,
Davis
, V, 254–62.

14
. April 18, 1862, quoted in Paul D. Escort,
After Secession: Jefferson Davis and the Failure of Confederate Nationalism
(Baton Rouge, 1978), 88.

imprisonment without trial of "civil officers, peaceful citizens, and gentlewomen" in vile "Bastilles."
¹⁵
Davis overlooked the suppression of civil liberties in parts of the Confederacy, especially east Tennessee, where several hundred civilians languished in southern "Bastilles" and five had been executed. Only five days after Davis's inaugural address, Congress authorized him to suspend the writ of habeas corpus and declare martial law in areas that were in "danger of attack by the enemy."
¹⁶
Davis promptly proclaimed martial law in Richmond and other Virginia cities. He did so not only because of Union invasion but also because of rising crime and violence among the war-swollen population of the capital. General John H. Winder, provost marshal of the Richmond district, created an efficient but ruthless corps of military police. In addition to banning the sale of liquor, establishing a pass system, arresting drunken soldiers, gamblers, pickpockets, and thieves, Winder jailed without trial several "disloyal" citizens including two women and John Minor Botts, a venerable Virginia unionist and former U.S. congressman. The
Richmond Whig
branded these actions akin to Lincoln's suppression of civil liberties, whereupon Winder threatened to shut down the newspaper. He never did so, but a Richmond diarist noted in April 1862 that several editors "have confessed a fear of having their offices closed, if they dare to speak the sentiments struggling for utterance. It is, indeed, a reign of terror."
¹⁷

Some newspapers, however, thought such a reign just what Richmond needed. "Our streets are quiet," rejoiced the
Dispatch
, because the military police had "arrested all loiterers, vagabonds, and suspicious-looking characters. . . . The consequences are peace, security, respect for life and property, and a thorough revival of patriotism." The
Examiner
believed that in an emergency "the Government must do all these things by military order. . . . To the dogs with Constitutional questions and moderation! What we want is an effectual resistance."
¹⁸

15
. Rowland,
Davis
, V, 199. "Gentlewomen" referred mainly to Rose O'Neal Greenhow, a Confederate spy in Washington whom Pinkerton's secret service had arrested and imprisoned.

16
. James M. Mathews, ed.,
Public Laws of the Confederate States of America
(Richmond, 1862), 1.

17
. Jones,
War Clerk's Diary
(Miers), 73. For a discussion of the enforcement of martial law in Richmond, see Emory M. Thomas,
The Confederate State of Richmond
(Austin, 1971), 81–84.

18
.
Richmond Dispatch
, April 4, 1862, quoted in Thomas,
Confederate State of Richmond
, 84;
Richmond Examiner
, Feb. 26, 1862.

Some commanders of military districts far from Richmond took it upon themselves to proclaim martial law. This provoked sharp protests. General Van Dorn's sweeping declaration of martial law in parts of Louisiana and Mississippi in July 1862 caused the governor of Louisiana to respond that "no free people can or ought to submit to [this] arbitrary and illegal usurpation of authority."
¹⁹
Davis forbade generals to suspend the writ or impose martial law on their own authority. But they sometimes honored his prohibition in the breach. Suspension of the writ proved an especially effective device to enforce conscription in parts of the South where state judges issued writs of habeas corpus ordering the release of draftees.

Civil libertarians linked martial law with conscription in their condemnations of Davis's "despotism." A triumvirate of Georgians emerged as leaders of an anti-administration faction on these issues: Governor Brown, Vice President Stephens, and Robert Toombs—now an ambitious but frustrated brigadier general. Even though the Confederate Constitution sanctioned suspension of the writ in case of invasion, Stephens considered such action "unconstitutional." "Away with the idea of getting independence first, and looking for liberty afterwards," he exclaimed. "Our liberties, once lost, may be lost forever." Brown agreed that "we have more to fear from military despotism than from subjugation by the enemy." Toombs denounced the "infamous schemes of Davis and his Jannissaries. . . . The road to liberty does not lie through slavery."
²⁰
Bending to such protests, Congress in April limited the scope of martial law and specified that the authority to impose it would expire in September. In October Congress renewed Davis's power to suspend the writ—but provided for expiration of this power in February 1863. Draft resistance caused Congress to renew the power for a third time in February 1864, but once more it expired at the end of July.

Davis therefore possessed the authority to suspend the writ of habeas corpus for a total of only sixteen months. During most of that time he exercised this power more sparingly than did his counterpart in Washington. The rhetoric of southern libertarians about executive tyranny thus seems overblown. The Confederacy did not have the North's problem of administering captured territory with its hostile population. Nor