Photo by Rachel Kelly

Wiliam Lee Miller is Miller Center    Scholar of Ethics and Institutions    and author of Lincoln’s Virtues:    An Ethical Biography (Knopf,    2002) and the prize winning    Arguing About Slavery. (1996).

May 14, 2003

By William Lee Miller

The biblical phrase "an eye for an eye, and a tooth for a tooth" that Jesus quoted and set aside was, in its original setting, not a fierce, terrible, passionate cry for vengeance but rather the sober codified requirement of a just restraint on such vengeance, a limiting principle of just retribution: only an eye for an eye; for a tooth, not a broken neck or a smashed skull but one tooth.(1) As such, it was not as primitive and not as completely transcendent in later "civilized" life, as some references to it imply. There are circumstances in which something very like it may still be to some, morally appropriate. The higher reaches of mercy, of grace and forgiveness, in which there is no retaliating, may be possible in person-to-person relationships; when the scene is expanded, however, and one deals with triangles and responsibilities for others, those higher reaches may not be possible nor morally fitting. For me to "forgive" somebody for punching you, in particular when I might have prevented the punch or when you were in my charge and I had a responsibility to protect you, may not be gracious but perverse.

For Abraham Lincoln, the sharpest test on the issue of retaliation would come on the question of how to respond to Southern brutality to captured black soldiers from the Union armies. Brutality is not too strong a word. After the Emancipation Proclamation opened the Union forces to the recruitment of freedmen in 1863, some, of course, would be captured in battle and would thus become an element in the explosive issue of the treatment of prisoners of war, an issue boiling in controversy and emotion to a degree that has not entirely simmered down even yet.

In the last quarter of the twentieth century, the epithets "racism" and "racist" would come to be bandied about rather too freely and not always in the service of a carefully equilibrated justice, but if ever any conduct deserved those epithets, it was the conduct of many Confederate soldiers, officers, and governmental leaders in response to the participation of uniformed black men in the armies against which they were fighting.

One response was to re-enslave or, in the case of those who had been free, to enslave them. But another widespread response was to kill them, and one can almost say that was official policy: the Confederate Secretary of War James A. Seddon said, "We ought never to be inconvenienced by such prisoners. . . . summary execution must therefore be inflicted on those taken."

(2) "Summary execution" was indeed inflicted on captured black soldiers, in numbers not known because the Confederate refusal to acknowledge them as legitimate prisoners of war meant that they did not keep adequate records. But there is no doubt that there were many.

Lincoln at Antietam, October 4, 1864

Let us pause to ask our own ethical question: Would the atrocities have been equally reprehensible if there were no racial element? No, because in addition to the unjust treatment of individual human beings in both cases, there is in a mass racial killing, the lumping of human beings into a despised category that is an additional evil, intrinsically and in its consequences both for the categorized group and for society. In the next century it would be necessary to invent the category of genocide to name that specific crime. The killings of black soldiers were on a much smaller scale than the twentieth century examples of the terrible crime of genocide, but they partook of some of the same elements.

Lincoln’s initial response to these killings was notable both for its severity —not unlike "an eye for an eye"— and for its unequivocal emphasis on the racial aspect. He drafted what was explicitly called an "order of retaliation" on July 30, 1863, that made clear and repeated insistence that the soldiers of the United States be treated without racial distinction. Four times in this short document he specifically rejected any distinction among Union soldiers as to "color:"

1) [E]very government has the duty to protect its citizens "of whatever class, color, or condition;"

2) the laws of civilized warfare "permit no distinction as to color;"

3) "[t]o sell or enslave any captured person on account of his color . . . is a relapse into barbarism. . . ." [The head of the Confederate Bureau of War had said, "The enlistment of our slaves is a barbarity." So there were sharply contrasting convictions about what was barbaric.];

4) " . . . if the enemy shall sell or enslave anyone because of his color, the offense shall be punished by retaliation upon the enemy’s prisoners. . . ."

The specific order for that retaliation was stark: "It is therefore ordered that for every soldier of the United States killed in violation of the laws of war, a rebel soldier shall be executed. . . ." Not just "an eye for an eye"—a life for a life.

In my judgment it is to Lincoln’s credit that he drafted this order while in the depth of his original righteous indignation and that in the event—in the scrupulous care of his later reflection —he never carried it out.

Lincoln and McClellan, October 3, 1862.

In the next year, in April of 1864, there came a terrible test of the policy of retaliation when black soldiers who surrendered at Fort Pillow were killed in a notorious massacre. President Lincoln described it to his audience at the Baltimore Fair as follows: "the massacre, by the rebel forces, at Fort Pillow, in the west end of Tennessee, on the Mississippi River, of some 300 colored soldiers and their white officers who had just been overpowered by their assailants."

Lincoln’s initial public response to the so-called rumor of this event, presented as an insertion in a speech he was giving at a Baltimore Fair six days after it had happened, was a model of executive responsibility and care. He explicitly recognized a public anxiety about whether the government was doing its full duty to the colored soldier. He explicitly and fully acknowledged his own responsibility for the use of colored troops "to the American people, to the Christian world, to history, and on my final account to God." (We may infer his own deep sense of a personal accountability, as the moral agent who had initiated the use of black troops, now for their fate.) He expressly stated the principle that had to be applied, although many white Americans were inclined to balk at it: "Having determined to use the Negro as a soldier, there is no way but to give him all the protection given to any other soldiers." He admitted, however, that it would be difficult to apply that principle, as events would prove: "The difficulty is not in stating the principle, but in practically applying it." He insisted that the government was doing, or trying to do, its part: "It is a mistake to suppose the government is indifferent to this matter, or is not doing the best it can in regard to it." At the end of his remarks in Baltimore, he said twice that if what was rumored had indeed happened at Fort Pillow, then "the retribution will surely come; . . . It will be a matter of grave consideration" as to exactly what it will be, but retribution must come.

Yet before reaching the point of retribution, Lincoln had to be sure he knew what had truly happened. As in the cases of young soldiers condemned to be executed, of Southern women wishing to pass through the Union lines, of the Indians in Minnesota when many white residents wanted to execute them en masse, and in many other cases, Lincoln wanted to make sure the particular facts in the individual case were correct before he made a judgment: going clear back to the days of the fury against the abolitionists and of his Lyceum Address, he knew how passion could swamp reason, including the reason that patiently seeks out the facts.

In Baltimore he said: "We do not today know that a colored soldier, or white officer commanding colored soldiers, has been massacred by the rebels when made a prisoner. We fear it, believe it, I may say, but we do not know it." And to take severe action on the basis of rumor, before one would know what happened, could lead to a radically wrong act indeed: "To take the life of one of their prisoners, on the assumption that they murder[ed] ours, might be too serious, too cruel a mistake." It certainly would have been, and even when Fort Pillow was proven true, it was "too serious, too cruel" to do what he is here assuming that the government will do: "to take the life of one of their prisoners."

"We are having the Fort Pillow affair thoroughly investigated. . . ." he said in Baltimore on April 18. By May 3 the investigation had reached a conclusion, and the president wrote to the cabinet:

It is now quite certain that a large number of our colored soldiers, and their white officers, were, by the rebel forces, massacred after they had surrendered, at the recent capture of Fort Pillow. ... I will thank you to prepare, and give me in writing your opinion as to what course, the government should take….

What to do? The two cabinet meetings at which the response to Fort Pillow was discussed must have been among the most sober examples of an ethics seminar in the highest reaches of American government that the nineteenth century would provide; it may be that the twentieth century to follow has provided—or should have provided if in fact it has not—more.

Three members of the cabinet— Bates, Montgomery Blair, and the Hoosier who was briefly Secretary of the Interior following Caleb Smith, John Usher—were, in spite of the president’s order the previous year, against any use of hostages for retaliation and believed that there should be punishment only for the specific perpetrators of the terrible deeds.

Chief among those perpetrators was General Nathan Bedford Forrest, a notorious Confederate general who had been a slave trader and whose views were unambiguously repugnant. Forrest had explicitly said, "I regard captured negroes as I do other property, and not as captured soldiers," and he also said that "no quarter" would be shown black troops. He is reported to have called out, riding among the wounded and the dead, that he knew some of them: "They’ve been in my nigger yard in Memphis." Other Confederate officers were reported to have shouted, "Kill the niggers." For such officers, one would have had no trouble agreeing, punishment by execution might have been appropriate. If the nineteenth century had provided for this rebellion some equivalent of a Nuremberg War Crime Tribunal or failing that, the equivalent of a South African Truth and Reconciliation Commission, then the perpetrators of the Fort Pillow massacre would have been prime candidates.

It should be added that the testimony about Fort Pillow also stated that some Confederate officers and men tried to stop the massacre; therefore, one would need to make discrimination of guilt, innocence, and worthy conduct. Sandburg quotes one Confederate officer shouting, "Boys, I will have you arrested if you don’t stop killing them boys," exact words which one may doubt were ever shouted, but careful discrimination of guilt would have to be made, if there were anyone or any way to make them, about the participants. Lincoln had stated already in his Proclamation of Amnesty and Reconstruction of December 1863—before Fort Pillow—that those not included in the amnesty were "all who have engaged in any way in treating colored persons or white persons, in charge of such . . . which person may have been found in the United States service . . . [o]therwise than lawfully as prisoners of war." In the aftermath of Fort Pillow, the cabinet and Lincoln apparently decided that the officers who commanded the massacre should be declared outlaws and tried for murder if captured.

But that was the easier part, morally speaking. In addition to the fact that those specific individuals were not captured, there was the larger question perhaps of a wider guilt and certainly of prevention of such events in the future.

Four members of the cabinet were for selecting hostages from among Confederate prisoners of war—Seward, Chase, Stanton, and Welles. And apparently the president also believed that more was needed than the impotent outlawing of the specific individuals who perpetrated the massacre.

On May 17 Lincoln drafted a letter to Secretary of War Stanton asking him to notify the insurgents, through channels, that the government had proof of the "massacre"—the word he used— "after [the soldiers of the United States] had ceased resistance, and asked quarter." He went on to say that the government had set apart by name a number of "insurgent" officers, held as prisoners of war, equivalent to the number of Union soldiers massacred at Fort Pillow. Then he wrote interesting phrases, introducing the promise and the implied, unspecific threat: "as blood cannot restore blood, and government should not act for revenge," if the insurgents would give assurance "as nearly perfect as the case admits" by July 1 "that there shall be no similar massacre" of any officer or soldier of the United States, "whether white or colored" (he specifically said), then that assurance will mean the Confederate set-asides will be returned to the regular conditions of prisoners of war. The implied threat, of course, was that if there were another Fort Pillow, if black soldiers in the Union army were again slaughtered, enslaved, or otherwise mistreated, maybe even if the Confederates gave no assurance by July 1, then something else might happen.

Notice that before he explained this implied threat, he specifically said—a continual Lincolnian doctrine—that governments should not act for "revenge" and that "blood cannot restore blood," which is to say, presumably, that these hostages (all officers by the way—that point was carried) were not to be executed for backward-looking reasons, in revenge by blood for Fort Pillow, but they who represented the exact number of those killed at Fort Pillow were to be set aside by name. One might say that Lincoln was trying to devise a policy of what would in the next century be called deterrence, a way to stop an action by an opponent with an implicit threat.

But suppose the Confederate government gave no assurance by July 1? Worse yet, suppose there were indeed another Fort Pillow? What then? Would one in the moment of truth execute those hostages? Presumably, in thinking this through to the moment of truth, Lincoln saw the difficulties, both moral and practical, for any such deed. These Confederate officers selected by name from one’s prisoners of war (selected how, by the way?) were, in relation to Fort Pillow, innocent. One’s moral understanding does not allow one to take someone else’s eye for an eye, some third person’s tooth for a tooth, and especially not some bystander’s life for a life. Would one, in retaliation, kill a random 300 innocent civilians on a Southern city street? (Such things would happen in the century to come but not at the hands of powers one could approve.)

No. If you answer that officers in the Confederate armed forces were not "innocent" in the laws of war, as civilians are, one would have to say, still, that their non-innocence pertains only to their participation in an objective force which may justly and of necessity be resisted. When they are captured and become prisoners of war, they are no longer part of that objective force and are protected by the laws of war from having their lives used as pawns. Hostage killing is not something we should do. Gideon Welles said such a policy would be "barbarous"—that word yet again.(3) And here, as so often happens in life, but particularly in war, the moral intersected with the practical: Could one imagine that, if the Union executed 300 Confederate prisoners of war, the Confederates would not reciprocate? Would not that have set in motion a vicious and unending bloody circle of retaliation—to Attorney General Bates, a compact for mutual slaughter, a cartel of blood and murder. The Union threats of retaliation for the treatment of black soldiers may have had some effects. James McPherson tells of the response by Union generals to the Confederates putting captured black soldiers to work on fortifications under enemy fire: Union generals put an equal number of captured Confederates to work under enemy fire, and the practice stopped. That "retaliation" had a kind of moral equilibrium that worked. The Confederates, despite laws they had passed, had, under Union pressure, to distinguish between slaves and freedmen.

Black soldiers, understandably, used "Fort Pillow" as a battle cry and were reported to have killed captured Confederates. The discussion of the issue was overwhelmed by the Battle of the Wilderness. The only solution was winning the war. This incident only increased their passion for doing so.

William Lee Miller is Miller Center Scholar of Ethics and Institutions and author of Lincoln’s Virtues: An Ethical Biography (Knopf, 2002) and the prize winning Arguing About Slavery (1996).

1 In the Book of the Covenant—"And the Lord said unto Moses . . ."—in Exodus, the retributive reciprocities are given a full measure of illustration: "And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe. . . ." That is Exodus 21:23-25 in the King James Version. See also Leviticus 24:20 and Deuteronomy 19:21.

2 James McPherson, Battle Cry of Freedom (New York: Ballantine, 1989), p. 793.
3 Lincoln was surely right to call the race massacre at Fort Pillow barbaric, and Welles as right to describe this possible hostage killing by that term—taken to mean deeply morally reprehensible. The Confederate Board, on the other hand, used the word in a way that is unintentionally ironic; the barbarism was not in what they condemned—"the enlistment of our slaves" (notice the "our")—but in the fact that they said and believed it.