Earlier this month, we wrote about Gregory P. Downs’s After Appomattox: Military Occupation and the Ends of War, and about the interactive companion website Mapping Occupation, which visually represents the distribution of U.S. troops in the states of the former Confederacy in the postwar years. As we reflected in that post—and as David W. Blight writes in his important new piece at The Atlantic—the consequences of the Civil War’s not having ended at Appomattox 150 years ago continue to resonate today. In the introduction to After Appomattox, below, Downs discusses the epoch that began on April 10, 1865, when “the war seemed almost over, and yet the war could not end.”
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On April 8, 1865, after almost four years of fighting and nearly three-quarters of a million deaths, Robert E. Lee wrote to Ulysses S. Grant to ask for “peace.” As the U.S. army closed in on Confederate forces near Appomattox Court House, Virginia, Lee sought a way to end not just the fighting but the entire conflict. With this letter from the Confederate general to the U.S. commander, the Civil War at last seemed near its close. If Grant had accepted Lee’s proposal, the two generals might have negotiated not just an army’s surrender but a nation’s peace, not just an end to fighting but an end to war. But Grant’s aides dismissed Lee’s offer out of hand. The rebel general “wants to entrap us into making a treaty of peace,” one of Grant’s aides said, but “that is the prerogative of the President, or the Senate.” A month earlier, President Abraham Lincoln had reminded Grant that politicians, not generals, would set the terms of peace. Even though Grant had referred to his own “great desire” for peace in a previous letter to Lee, he knew he did not have the power to make that decision. Taking Lee’s reference to peace as a sign that the rebel would not actually surrender and “still means to fight,” Grant went to sleep without sending a response. Upon waking, Grant decided to send a reply to Lee, writing that “I have no authority to treat on the subject of peace.” They could, however, discuss surrender. Even as he dismissed peace, Grant acknowledged that he was “equally anxious for peace.” Trying to appeal to Lee without making any promises, Grant stated that surrender would hasten but not bring peace.”
The distinction between Lee’s “peace” and Grant’s “surrender” would make a great deal of difference over the next five years. Denying peace was among the most important decisions made during the Civil War. It confirmed that the war was fundamentally a political, not just a military, conflict, and its terms would be set by politicians. By allowing the United States to utilize war powers years after battlefield fighting stopped, the continuation of wartime gave the national government the necessary authority to suppress the rebellion, consolidate its forces, and fashion effective civil rights. The United States would not declare peace because it could not be certain of the national government’s own safety. Beyond that, with nearly 3 million people still enslaved, with the Thirteenth Amendment not yet part of the Constitution, and with state laws on the books defending slavery, the U.S. government would not end the war because slavery had not died. Destroying slavery and constructing freedom depended upon the military’s authority to override state laws, displace judges and sheriffs, arrest outlaws, proclaim emancipation, oblige planters to provide contracts, transfer freedpeople’s legal cases to military- backed courts, and try violent white Southerners in front of military commissions—in short, to run an occupation of the South that would have been illegal in peacetime. From that occupation would emerge new rights, new governments, and a newly expanded democracy. Constitutional protections that we still take for granted—due process, equal protection, birthright citizenship, the vote—were by-products of martial law. All of this was on the line as Grant and Lee met in April 1865, yet no one could have predicted how long it would actually take to end the war.
Looking at Appomattox in this way forces us to rethink the commonsense view that wars are defined by soldiers meeting in battle. Even though wars are primarily narrated around campaigns and clashes, they are also moments when countries step away from normal legal restraints and grant the military extraordinary power over daily life. To describe a period that is neither peacetime nor active battlefield conflict, lawyers and politicians sometimes constructed names for the time after fighting but before peace. One influential Republican congressman called the period war cessante; another termed it a time of constructive war. To explain Reconstruction, a leading early twentieth-century historian quoted British Prime Minister William Ewart Gladstone on the difference between “war and a state of war.” For the purposes of this book, I distinguish among battle time, postsurrender wartime, and peacetime. For four years, between 1861 and 1865, the United States waged an open, flagrant war against the Confederate rebellion. But the United States remained in a state of wartime for three years after surrender in some rebel states and for more than five years in others before finally returning to peacetime in 1871.
Defining the years after Appomattox as a continuation of wartime allows us to understand war powers as the participants did, using the definitions they advanced. Although it seems commonsensical now to define wartime as battles, and Democrats and white Southerners frequently defined it that way then, in some ways this assumption—like much of what passes for common sense—is a product of World War II and other twentieth-century wars. In 1865, congressmen, generals, and lawyers utilized the word wartime more broadly because they understood the usefulness, even necessity, of war powers. In the summer of 1865, a general dismissed soldiers’ claims that the war was over by reminding them that the war would not be “brought to a close” until civil authority was fully restored, and the states had returned to Congress. Republican congressmen frequently defended the Reconstruction of the rebel states on the grounds that “peace has not yet come,” the people of the South “are yet subject to military control,” and the “war powers” should be “continued and exercised” until civil authority was reestablished. As late as 1869, the attorney general flatly affirmed that the war continued since it was up to Congress “to determine when the war has...ended.” In 1870 one of the most careful lawyers in the U.S. Senate argued that wartime endured until Congress seated the final representatives from the rebel states. They followed eminent philosophers of war from Cicero to Hugo Grotius, who defined war as “a state of affairs” which “may exist even while its operations are not continued.” Thomas Hobbes likewise wrote that “the nature of war consisteth not in actual fighting but in the known disposition thereto.” Weeks after Appomattox, the architect of the United States’ code of war, Francis Lieber, drew upon this well-established tradition as he dismissed the “erroneous fallacy” that surrender could “take the place of treaties of peace.” This was a mistake so “profound” that he found it barely worth mentioning. To lawyers and policy makers, wartime did not necessarily mean battles, nor did it mean their expansive cultural consequences; it meant a legal state that shaped government power and ended at a precise moment with the dawn of peace.
To understand why the terminology of wartime was so weighty and why war powers mattered so much, we have to ask what, precisely, wartime and peacetime are. War had to be legally defined because it opened up useful but dangerous powers for government. Under U.S. law, peacetime generally means that courts, elected officials, and laws are supreme; the military serves rather than supplants local government. In the Constitution, Americans defended their republican experiment from centralized military tyranny by protecting trial by jury and the privilege of habeas corpus, the centuries-old English right to petition a court to either be charged with a crime or released from custody. Although Congress gave the president the power to call out the militia and (after 1807) the army, it placed the armed forces at the service of local government by generally making the president’s intervention dependent upon a request from a legislature, governor, or federal judge. Even before the Civil War, however, some of these restrictions were loosening. Southern congressmen had implicitly expanded the military’s power in the 1850 Fugitive Slave Law. Still, the military remained a tool of civil officials. It generally could respond to requests but not act on its own.
“I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one.”
But the Civil War was not fought under peacetime limits. Wartime gave President Abraham Lincoln authority that he believed he needed to defeat the rebellion. Soon after proclaiming that “combinations too powerful to be suppressed” had obstructed the execution of the law in the rebel states, Lincoln turned to the “extraordinary powers which the Constitution confides to him in cases of insurrection.” Under these war powers, Lincoln suspended the privilege of the writ of habeas corpus, closed newspapers, and created army-regulated military commissions to bypass juries and try Northern and Southern civilians for undermining the war effort. Defending his actions in a widely distributed 1863 letter, Lincoln argued that “certain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional” otherwise. “I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one.”
As the U.S. Army moved south during the conflict, these war powers helped it reestablish governments and end slavery. Drawing upon and quickly going beyond its experiences in the Mexican-American War, the army took control of towns and cities, either dismissing officials or placing them under its control. As the United States turned toward broad emancipation of slaves, the military had to go farther; ending slavery required disregarding state laws and local officials. For this reason some scholars have called Lincoln or the military tyrannical, but this is a vast overstatement. War powers did not mean unlimited powers; commanders ordered officers to behave honorably and to follow the Constitution whenever possible. Politicians did not believe that war powers allowed them to do whatever they wanted; their actions had to be plausibly tied to military necessity. The United States avoided large-scale executions or displacement or property seizures. In defending Lincoln and the army from charges of tyranny, however, we sometimes lose sight of the fact that war powers were substantial, as was the threat they posed to the country’s system of government. The ultimate protection against that threat would be the dawn of peacetime. Because the state of war was temporary, military interventions during wartime did not set a precedent or topple the foundations of government. Peacetime would mean the restoration of normal legal restraints.
But that was precisely the dilemma. Returning to peacetime meant giving up powers that still seemed necessary as battlefield fighting closed. In April 1865, basic order, human freedom, and civil rights depended upon not reestablishing courts’ peacetime authority. While everyone knows that Reconstruction was crucial for the expansion of rights, the story is often domesticated into a tale of courtrooms and congressional debates, of laws, amendments, conventions, petitions, and voting booths. These new rights, however, had other origin stories. They were fashioned in the armed struggle among freedpeople, soldiers, and rebel insurgents. They were created in legal rhetoric and also in blood, sometimes at gunpoint and frequently through martial law. As long as the national government retained its war powers, it could save rights from becoming what James Madison had presciently described as mere “parchment barriers.” Through the war powers, the government exercised the crucial, if sometimes dismaying, attribute of force, in keeping with Madison’s definition of government as “an institution to make people do their duty.” The government needed this force after Appomattox if it meant to defend itself or to construct a reliable freedom. From places like Alexandria, Virginia, freedpeople in the weeks after surrender asked the president to sustain military authority over local governments that still recognized slavery and discriminated against black people. These letters posed a conundrum. In 1865, the government could protect freedpeople or it could return to peacetime, but it could not do both.
As the national government continued its war powers over places like Alexandria, it launched a bold and sometimes revolutionary experiment. Approaching Reconstruction through the extension of war powers instead of searching for explanations for its ultimate disappointments, we see rights born in the face of bayonets, and a Constitution remade through the subservience of civil law. We also see the power of the violent insurgency that arose in the South to displace the military’s authority. The occupation of the South, despite its limitations, created narrow but precious space for freedpeople to organize economically, socially, and politically. The fruits of the occupation were new constitutional amendments passed with the aid of military rule that fundamentally altered American law and created new categories of rights. For a brief but still meaningful time, the fruits of occupation also included new governments on the ground that began to remake Southern politics and the South’s political economy.
Calling the post-Appomattox period an occupation goes against some venerable ways of thinking about occupations in general and Reconstruction in particular. Operating under a narrow definition of occupation, some scholars of occupation now—and some politicians then—argue that a country cannot occupy its own territory. While logical, this distinction was highly contested during the Civil War era. Drawing from French theories of a state of siege and from British notions of martial law, many Republicans claimed that rebellious territories could be occupied almost as if they were foreign as long as the victorious nation maintained the state of war. While residents retained their citizenship, they in other ways could be treated essentially as an occupied people. Other analysts are skeptical of treating Reconstruction as an occupation because of the relatively small numbers of troops used. Now, scholars believe effective occupations require one soldier for every twenty residents, but this contemporary measure confuses our ability to understand the nineteenth century. Reconstruction had similar staffing levels as contemporaneous military actions in India or Ireland or postrebellion Hungary. Finally, historians have underplayed the occupation during Reconstruction because it often worked through civilian officials. In the wake of the large, successful, and thoroughly disruptive U.S.- and Soviet Union-led occupations of the 1940s and 1950s, historians downplayed the size and effectiveness of the understaffed and restrained post-Appomattox effort. Instead of a tyrannical occupation, as white Southerners had claimed, scholars wondered whether there had been an occupation at all. But in fact most occupations work through elite collaborators, and we must guard against judging the nineteenth century by twentieth-century standards. In general the skepticism about Reconstruction’s occupation is due to an absence of information. Without good data on where soldiers were, it has been hard to know how the occupation worked or what it looked like. Through extensive work in National Archives records and many other sources, and with an eye on the burgeoning literature on contemporary occupations, this book portrays an occupation that was stymied but still in many ways successful.
The boldness of the occupation of the South, however, raises other, disturbing questions about the contemporary use of war powers. In light of the apparent overextension of war powers over the past decade, it is almost irresistible to draw bright lines between civilian law and military rule and to see war powers as illegitimate and unnecessary. But looking at the story after Appomattox forces us to confront the dismaying, necessary fact that our own contemporary freedom and civil rights are in some ways the products of war powers. Even the rights we cherish are often fashioned by coercion.
After Appomattox, that coercion made rights meaningful, but it also threatened the republican system of government. As the Civil War opened the possibility for the realization of freedpeople’s and Republicans’ fondest dreams, it also raised understandable fears—often among the same people—that the republican experiment could collapse under the strain. Fearful of the vulnerable state of the national government and the contingent nature of the American experiment, Republicans tried to go beyond the law and yet not risk destroying the law. They wished to create a bounded, exceptional time when they could go to extremes but remain secure in the knowledge that they would return to peacetime normalcy. But this shared goal masked deep divisions over the precise terms and timing of the return of peace.
Beyond congressional Republicans, there was no consensus at all. The extension of wartime sparked an extraordinarily bitter political fight over who had the power to end a war, the president or Congress. They fought over a silence in the Constitution. Although Congress declares wars and then the Senate ends them by ratifying treaties, civil wars and rebellions present peculiar problems, since they do not conclude with treaties. Lincoln and President Andrew Johnson both claimed a now-familiar executive branch authority over questions of war and peace as commanders in chief. But Congress did not accede to those claims. Congressional Republicans insisted, and the army acknowledged, that Congress controlled the end of the war. Peace returned when representatives from the Confederate states were seated in the House of Representatives and the Senate. Until that day, a post-surrender wartime endured. In the struggle between Congress and the president, Johnson vetoed key bills, removed generals and cabinet officers, declared Congress illegitimate, and proclaimed peacetime. In response, congressional Republicans extended wartime for more than three years, stripped away presidential power over the army, impeached Johnson, and came within a single vote of conviction and removal in one of the gravest constitutional crises of the country’s history. Even after that, the fight to define wartime and the powers of war dragged on for another two years.
If measured by wartime legal authority and by the absence of representatives from rebel states, the Civil War ended with the seating of a senator from Georgia on February 1, 1871, almost ten years after the attack on Fort Sumter. On that day, a Democratic senator called out, “Let us have peace.” What followed the legal end of war powers was not quiet but a battle to shape the peacetime that resulted. As the Supreme Court, voters, and white Southern insurgents hemmed in federal power, Republicans and freedpeople learned that they could construct a new peace, but they could not hold it.
“Wars produce many stories of fiction, some of which are told until they are believed to be true.”
When Grant and Lee did meet on April 9, Palm Sunday, in Wilmer McLean’s parlor, the two negotiated the terms not of peace but of surrender. Still, it was hard not to read the scene as a sign of something larger. There are good reasons why we have treated the moment as a return of peace; many people at the time did. That day, U.S. officers waved Confederate money, “shouted, screamed, yelled, threw up their hats and hopped madly up and down.” Perhaps carried away by events, Grant said: “The war is over. The Rebels are our countrymen again.” By legend, although perhaps not in reality, at the famous surrender ceremony three days later, U.S. and Confederate troops signaled their mutual respect when they each sounded the marching salute, “honor answering honor.” “Reluctantly, with agony of expression,” the Confederates stacked arms, lay down their “battle- worn and torn” flags, and turned toward home. Behind them would trail myths and misunderstandings that confound our sense of the Civil War and Reconstruction to this day. Stories circulated of gestures of reconciliation and peace. Some said that Lee surrendered his fine sword to Grant, and then Grant handed it back. “It is the purest romance,” Grant later wrote. “Wars produce many stories of fiction, some of which are told until they are believed to be true.”
So, too, and still, from Appomattox a great many more significant and troubling stories bloom that would be very good if only they were true. The most important is the notion that the war ended at Appomattox, an idea so powerful that it seeps into the words of historians, documentarians, and even the National Park Service. The Appomattox myth is a mighty one that draws people to a message of mercy and reconciliation in the encounter between the two generals. In American history, the Appomattox myth carries the weight of the birth of the new nation, forged in sacrifice and respect and forgiveness, the family returned home under one roof.
But that story of a quick peace misleads us about key developments of the post-Appomattox era. It is easy, but inaccurate, to see rebels stacking their arms as proof that they had surrendered their cause. In fact, they returned home from fighting still fighting. There was no time when most rebels were willing to concede to whatever terms the federal government suggested, no moment when the problems of a postsurrender Reconstruction might have been easily solved. Although many ex-Confederates were careful to avoid trouble after surrender, they were biding their time. Soon they would launch a powerful insurgency to undermine the army’s rule and then topple the military-backed freedpeople’s governments in the South.
There was no time when most rebels were willing to concede to whatever terms the federal government suggested, no moment when the problems of a postsurrender Reconstruction might have been easily solved.
Likewise, it is tempting to misread the U.S. soldiers’ alleged salute to the rebels as proof that the U.S. military disappeared from the story and retreated into peace, or even felt a sense of brotherhood with their Confederate enemies. The famous parade of 200,000 soldiers through Washington, D.C., in the Grand Review in May 1865, when Herman Melville compared the soldiers’ alleged disappearance to the natural force of daylight dispersing the stars “at their steely play,” seems to confirm this. Although many soldiers did return home, the army did not actually disappear. It launched a widespread and intermittently effective occupation of the U.S. South. The army maintained more than a hundred thousand soldiers in the rebel states for the remainder of the year, and more than twenty thousand for the next four to five years. There, the occupying army used its legal powers over civil governments and its geographic reach into the Southern countryside to try to set the terms for the end of slavery and the meaning of freedom.
The conventional image of the surrender at Appomattox Court House also erases the 4 million African Americans whose freedom had become crucial to the war effort. Grant may well have encountered some of these fleeing ex-slaves as he rode to meet Lee along roads so choked with people that he could barely make headway and had to cut across fields and Confederate lines. Freedpeople on the move had launched strikes that crippled the Confederate economy, delivered information to U.S. forces, enlisted by the hundreds of thousands in the U.S. Army, pressed for an expansive vision of their freedom, lobbied for land, and begun to reconstitute societies in the coastal belt where planters had fled. Before we too quickly transform all of the men and women and wagons on the road in April 1865 into warriors or strikers, however, we might also ask where freedpeople were going. Throughout the South, before and after surrender, freedpeople moved in the direction of the U.S. Army. The army, despite its many limitations, was their most proximate, powerful ally in the battle to assert the rights of freedom. Ex-slaves did not move to the blank space of freedom but to the government that seemed to have the power to defend their rights.
At Appomattox, and then afterward, the war seemed almost over, and yet the war could not end. The day after Lee surrendered, as Grant prepared to rush to Washington to “begin the reduction of the military establishment, and the enormous expense attending it,” he asked to meet with Lee one more time. The two men talked on horse back atop a knoll that overlooked the lines. There, Lee reminded Grant that the South “was a big country and that we might have to march over it three or four times before the war entirely ended.” To this Grant suggested that Lee might calm the “ whole people” by urging them to surrender. But Lee would not and could not do it. Like Grant, Lee now recognized that civilians, not soldiers, would have to determine the timing of peace. Parting, Lee returned to his lines, Grant to Wilmer McLean’s house, where Confederate and U.S. officers—many of whom had been classmates before the war—reunited. After an hour or so of listening to their conversations, Grant headed toward Burkesville Junction, the nearest working railroad depot. The men in Appomattox had a surrender ceremony to prepare, but Grant had more important work. At Burkesville, he caught a train toward Washington for a cabinet meeting about the conquered states, planning what would come next.
