If Lee looked out at Longstreet's men as they marched down Main Street that 17th of April on their way to the Peninsula, he could not have been thinking of the flowers or of the cheers. His mind must have been on the size and number of the regiments. He must have asked himself what would be the probable effect of the law the President had signed the previous day. Would it fill the ranks that were soon to be decimated in the slaughter that every one now foresaw?
Ever since the early winter, he had been looking forward with the deepest concern to March and April, when the men who had clamored to join the colors in the first fervor of secession would come to the end of their twelve months' enlistment. Many, of course, would continue in service, but a sufficient number would leave the army to reduce its strength most dangerously. "At the beginning of the campaign," he had written in December, "when our enemies will take the field fresh and vigorous, after a year's preparation and winter's repose, we shall be in all the anxiety, excitement and organization of new armies. In what different condition will be the opposing armies on the plains of Manassas at the resumption of operations."1 He had seen no way of meeting this condition except by conscripting the man-power of the South, and as early as December 26, 1861, it will be recalled, he had written Governor Letcher advocating a general draft in Virginia of all soldiers who did not re-enlist.2 President Davis had advocated a like policy for the entire Confederacy, but had encountered the opposition of extreme states-rights' politicians, and both in and out of Congress he had faced the inertia born of the belief that European countries would intervene to stop the war before another campaign opened. Not until December 11, p26 1861, had legislative action been taken, and then the law had been fashioned to please rather than to strengthen the army. The poor measure adopted was known as the "bounty and furlough act,"3 and it demonstrated, as Ropes aptly remarked, that "the difference between an army and a congeries of volunteer regiments was not appreciated."4 Every soldier who re-enlisted for three years or for the duration of the war was promised a bounty of $50 and a sixty-day furlough. He could choose his arm of the service, and if he did not like his company, he could join a new one. There was nothing in the law to keep an ambitious soldier from canvassing discontented men in established regiments to enter new units, where the solicitor hoped to win a commission. On the re-enlistment of the army, the men could elect their own officers, rewarding those who curried favor by laxity and demoting those who had enforced discipline. Once the elections were held, all commissioned vacancies in every regiment were thereafter to be filled by promotion, with the proviso that when new second lieutenants were to be named, they should be elected from the company in which the vacancy existed. A non-commissioned officer, therefore, who discharged his duties vigorously and aroused the antagonism of the indolent and the shirker, could be sure that when a new lieutenant was to be chosen, he had little chance of receiving a bar on his collar as a reward for performing his duty but was much more likely to be passed over for some popular private. A worse law could hardly have been imposed on the South by the enemy. Its interpretation was confusing,5 its effect was demoralizing, and it involved nothing less than a reconstruction of the entire land forces of the Confederacy in the face of the enemy.6 Upton did not err when he said later that the bounty and furlough law should have been styled "an act to disorganize and dissolve the provisional army."7
This mischievous measure had been enacted before Lee had returned to Virginia from the South Atlantic coast and its evil consequences were only too apparent when he assumed nominal p27 control of military operations. There had been nothing he could do about the existing law. He had been compelled to wait until necessity should convince Congress that if the South was to survive the casualties of even that single year, a sterner policy was demanded.
With the Virginia troops, the case had not been quite so discouraging. Moved by Lee's appeal from South Carolina, Governor Letcher had induced the general assembly of the commonwealth to provide in February for a general enrolment of all citizens between eighteen and forty-five years of age.8 From the list so provided, 40,000 militia had been called to the colors on March 10, in response to a requisition from the War Department,9 and the Confederate commanders had been authorized to use these men in any temporary emergency.10 Replacements of militiamen were to be drafted to take the place of twelve-months' troops who declined to re-enlist for the war.11 But these latter troops were not allowed to leave the service. Upon the expiration of their terms, they passed immediately into the militia, and, as all the militia had been embodied, Lee announced on April 11, in his capacity as commander of the military and naval forces of Virginia, that volunteers who fell into the militia on their failure to re-enlist could be drafted at once, "as far as practicable into the same companies to which they had lately belonged."12 In this direct fashion, Virginia adopted compulsory service. Her regiments were in no danger of being wrecked by the reorganization.
Between the time the bounty and furlough law was enacted and the date of the conscription of the Virginians whose terms were expiring, Congress passed a series of weak and hurried measures, designed to increase recruiting with the bait of further promises to the men who re-enlisted.13 These acts failed to effect any general re-enlistment. Within little more than a month after Longstreet's division marched through Richmond, the terms of not less than 148 Confederate regiments would expire. "There was," as the Secretary of War subsequently reported, "good reason to believe that a large majority of the men had not re-enlisted, and of those who had re-enlisted, a very large majority had entered p28 [new] corps which could never be assembled, or, if assembled, could not be prepared for the field in time to meet the invasion actually commenced."14
Seeing no way of preventing the disorganization of the army except by conscription, Lee made himself an opportunity, even during the crisis that followed the landing at Old Point on March 23, to review the subject fully with the new lawyer-member of his staff, Major Charles Marshall of Baltimore. Lee maintained, said Marshall, "that every other consideration should be subordinated to the great end of public safety, and that since the whole duty of the nation would be war until independence should be secured, the whole nation should for the time be converted into an army, the producers to feed and the soldiers to fight" — a principle that in 1917 America wisely adopted.15
Marshall was directed by Lee to draw up the heads of a bill providing for the conscription of all white males between eighteen and forty-five years of age. The finished paper Lee took to the President, who approved its principles and had it put into shape by Mr. Benjamin. Introduced in Congress, the bill was amended and mangled. Provision was made for the election of officers in re-enlisted commands, and most of the other useless paraphernalia of the bounty and furlough act were loaded on it. The upper age-limit was reduced from forty-five to thirty-five years, and a bill allowing liberal exemption was soon adopted.16 The press had applause for the object of the bill and sharp words on its weaknesses.17 In the army, those who had intended not to re-enlist on the expiration of their terms grumbled and charged bad faith on the part of the government,18 but those who were determined to carry on the war to ruin or independence rejoiced that those who had stayed at home were at last to smell gunpowder. p29 In the well-disciplined commands, men who went home at the expiration of their twelve months and returned as conscripts soon settled down to army routine.19 The election of new officers resulted in the defeat of many good soldiers and in the choice of "good fellows" in their places, but, on the whole, the elections wrought less evil than could reasonably have been expected.20 For his part Lee realized the danger involved in reorganizing the army to the accompaniment of Federal bullets, but he read in the law a promise that recruits would ere long fill the regiments which passed down Main Street that day, and for that promise he must have been grateful. It probably never occurred to him that chief credit for the conscript act was his own.
4 J. C. Ropes: The Story of the Civil War (cited hereafter as Ropes), 1, 219.
5 O. R., 5, 1037, 1045, 1057, 1058‑59, 1061, 1063. Johnston had favored inducements and furloughs for men who would re-enlist (O. R., 5, 974), but he protested often and warmly against the law as passed.
6 Marshall, 13‑14.
7 Upton: The Military Policy of the United States, 460.
13 Journals of the Confederate Congress, 1, 690, 692, 695, 711, 847, 848.
15 Marshall, 32.
16 For the text, see IV O. R., 1, 1095 ff. An unfavorable critique of the law will be found in Marshall, 33 ff. De Leon, op. cit., 174 ff., praised its good points. A. B. Moore, in his Conscription and Conflict in the Confederacy, 16 ff., 115 ff., discussed the reception and effects of the measure. To Doctor Moore's book the author is indebted for several of the references already cited.
17 Richmond Examiner, April 14, 15; Richmond Enquirer, April 17, 18; Richmond Dispatch, April 14, 1862.
18 Excellent examples will be found in J. W. Reid's letters home, published in his History of the Fourth South Carolina Volunteers, 68, 76. The act, he said, "will do away with all the patriotism we have. Whenever men are forced to fight, they take no personal interest in it."
19 Dickert's History of Kershaw's Brigade, 104‑5.
20 Ibid., 106‑7; letters of T. R. R. Cobb, 28 S. H. S. P., 292.
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Robert E. Lee
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