Harold Holzer, Wall Street Journal; original article contains an additional illustration
Image from article, with caption: UNCIVIL WARRIORS By Peter Charles Hoffer Oxford, 228 pages, $27.95
Toward the end of the Civil War, a recently liberated former slave from Union-occupied New Orleans demanded that her onetime owner be held accountable for dividing [JB emphasis] her family. Rose Herera’s “mistress,” Mary DeHart, had shipped three of Herera’s young children to Cuba before slavery was outlawed in Louisiana. Civil authorities could find no grounds to prosecute DeHart or order a 19th-century version of family reunification. In stepped Union Gen. Nathaniel Banks, a former attorney who commanded Union forces in the Crescent City. In a stroke of interpretive genius, Banks discovered grounds for a different ruling by citing recently overturned slave laws, which had forbidden owners from selling away children under 10. The general ordered DeHart to Cuba to retrieve Herera’s children.
That the Civil War transformed American jurisprudence in both small and large ways is neither a novel nor disputed claim. At its most fundamental level, Union victory meant that African-Americans would no longer be treated as property. Eight months after Lee surrendered to Grant at Appomattox, involuntary servitude became unconstitutional. Within a few years, amendments guaranteeing people of color citizenship, civil rights and voting rights were ratified. But if the law changed, lawyers did not. They still thirsted for the combat of interpretation and argumentation.
In “Uncivil Warriors: The Lawyers’ Civil War,” a startlingly original work of history, Peter Charles Hoffer traces how the war turned the legal worlds of the Union and the Confederacy upside down. He closes his analysis with a provocative chapter on the Reconstruction era, in which he suggests that both Northern and Southern lawyers deserve enormous credit for hashing out the details of dramatically altered statutes—earning big fees in the bargain.
Earlier legal histories have understandably focused on the statutes. Mr. Hoffer, a professor of history at the University of Georgia, concentrates instead on the players who worked to change the law and the settings in which they did so, from secession conventions to courtrooms to military installations. War made it possible for old lawyers to make new law, as when Union Gen. Benjamin Butler —a former attorney later known as “Beast” to his Southern detractors—in 1861 found a novel and ingenious legal argument for sheltering the runaway slaves who flocked to his headquarters at Fort Monroe, Va. He declared them “contrabands of war,” or as they became known in the vernacular, “contrabands.” Butler single-handedly overturned the federal Fugitive Slave Act without even consulting his commander in chief, Mr. Hoffer writes, and “almost by accident” became “one of the first of the lawyer/politicians to formulate a policy” on slavery.
The principal wartime forum for hashing out new legal precedents was Abraham Lincoln’s cabinet—more a team of attorneys, Mr. Hoffer argues, than Doris Kearns Goodwin’s team of rivals. “Overall, one could not find a more able or imposing team of lawyers than this,” Mr. Hoffer asserts, “though like many law partnerships, there was rivalry and contention among themselves and with senior partner Lincoln.” During four years of military conflict, savvy lawyer-politicians like William Seward, Salmon Chase, Edwin Stanton and Edward Bates haggled over such cornerstone policies as the legality of the Union blockade of Confederate ports, emancipation by executive order, the first military draft, and the suspension of the writ of habeas corpus, along with the use of military tribunals even where civil courts continued to operate. Cabinet members helped Lincoln maneuver around the Constitution and elude oversight by a Supreme Court over which ancient, pro-slavery Chief Justice Roger B. Taney presided until only months before the Confederacy was defeated. In 1864, Lincoln would appoint Chase to succeed Taney as chief justice.
Mr. Hoffer may occasionally treat the obvious as revelatory: It should be no surprise that many politicians of the Lincoln era—like politicians in most periods before and since—had trained in the law and practiced at the bar before launching careers in government. But the author treads new ground when he explores the decisions made by lawyer-generals like Butler, Joseph Holt and William T. Sherman, who regarded all Rebels as “unregenerate law breakers.” Sherman, he writes, “was always providing legalistic explanations” for his aggressive way of making war.
Readers will be studying, and debating, Mr. Hoffer’s unique scholarship for years—and profiting handsomely. In his last chapters, however, he strives a bit too hard to stake out distinctive territory. At one point he derides Lincoln’s final Annual Message to Congress, in December 1864, for lacking “the sharp legal acumen of his First Inaugural, or the solemn gravity of his Emancipation Proclamation. He was factual, but did not rehearse the facts in an argumentative way.” Perhaps, Mr. Hoffer suggests, Lincoln had already “passed the mantle of liberator to Chase and was simply relieved to have done so.” In fact, Lincoln had hardly surrendered that role, telling a visitor that same year that he believed history would honor him for it.
Mr. Hoffer alternatively posits that, by late 1864, Lincoln’s sharpest writing was behind him: Reading that annual message, he says, “one senses that he was mentally and physically near the end of his tether.” If so, Lincoln miraculously recovered in time to craft his majestic Second Inaugural Address three months later, when he was arguably more exhausted than ever. The president and others considered this his greatest speech. Yet here, too, Mr. Hoffer breaks with traditional judgment: He declares the masterpiece a failure because it departed from legal argumentation to stress God’s will over man’s law. Left unmentioned is the fact that Lincoln’s First Inaugural, however artful legally, had left seceding states unpersuaded and unreconciled. At least the Second Inaugural promised “peace among ourselves”—a path to reunification “with malice toward none.” Sometimes moral arguments trump legal ones.
Mr. Holzer, director of the Roosevelt House Public Policy Institute at Hunter College, won the 2015 Gilder Lehrman Lincoln Prize.
Appeared in the July 30, 2018, print edition as 'Lawyers At Civil War.'
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