After a short-lived attempt to maintain a posture of “armed neutrality”vis-a-vis the Civil War combatants, Kentucky became the uncertain and bloodilycontested frontier march between the rival governments.
With the 1862 invasions of Kentucky by armies North and South, sides had to be chosen. Corbin enlisted with some local militia mates in the Confederate army; after wintering in Virginia, he was dispatched back to his native Campbell County, Ky. — now under Union control — to beat the bushes for more Confederate enlistees. With him was another Campbell County native son now serving in the Southern army, Jefferson McGraw.
In April 1863, a Union patrol out hunting Confederate guerrillas accidentally caught wind of the recruiters’ activities and followed McGraw to the Rouse’s Mill safe house where he was to rendezvous with the waiting Corbin.
Several days after the recruiters’ capture, Union Gen. Ambrose Burnside issued General Order 38, threatening the death penalty for “all persons found within our lines who commit acts for the benefit of the enemies of our country.” This order explicitly compassed “Secret recruiting officers within our lines.”
This book has a chapter about the Corbin-McGraw case.
General Order 38 was viewed as targeting “Copperheads” and other anti-war northern agitators — and it almost immediately resulted in the arrest of Ohio Democrat Clement Vallandigham** — but it was the less august Corbin and McGraw who paid the heavier penalty.†
Again, General Order 38 postdated Corbin and McGraw’s arrest. They had expected, and perhaps were even directly assured by their captors, to be treated as regular prisoners of war. On the other hand, Order 38 aside, these men were undoubtedly working covertly behind Union lines, and risked harsher treatment on that basis alone.
At any rate, the two were condemned to die by a military commission in Cincinnati for violating Order 38 by recruiting behind Union lines. Neither Gen. Burnside nor Abraham Lincoln himself — who were both besieged by petitions for clemency — would consent to spare them.
Corbin, who was a church elder in his home environs, led a prayer service for guards and inmates alike at the prison chapel on the morning of his execution. Writing 34 years later, a witness recalled the moment:
That scene, and the words which fell from his lips on that occasion, are indelibly stamped on my memory …
After reading and prayer by Captain Corbin, he said, in part, speaking of himself, that “life was just as sweet to him as any man, but if necessary for him to die in order to vindicate the law of the country, he was ready to die, he did not fear death; he had done nothing he was ashamed of; he had acted on his own convictions and was not sorry for what he had done; he was fighting for a principle, which in the sight of God and man, and in the view of death which awaited him, he believed was right, and feeling this he had nothing to fear in the future.” He closed his talk by expressing his faith in the promises of Christ and his religion.
To see this man, standing in the presence of an audience composed of officers, privates, and prisoners of all grades, chained to and bearing his ball, and bearing it alone, presenting the religion of Christ to others while exemplifying it himself, was a scene which would melt the strongest heart, and when he took his seat every heart in that audience was softened and every eye bathed in tears.
After Corbin and McGraw were shot, two Union prisoners of war in Confederate custody were selected by lot for a retaliatory execution. With some diplomatic maneuvering (and a Union threat to retaliate for the retaliation by executing Robert E. Lee’s captured son), they managed to avoid that fate. (One of these men almost executed in retaliation, Henry Washington Sawyer, went on after the war to build the still-extant Chalfonte Hotel in his hometown of Cape May, N.J.)
** General Order 38 also resulted in the arrest of an Indiana legislator named Alexander Douglas. Douglas beat these charges thanks to the energetic defense mounted at the tribunal by his neighbor, attorney Lambdin P. Milligan … and the fame thereby falling to the latter man would eventually help to fix his own name into the jurisprudential firmament as the subject of the landmark Supreme Court ruling Ex parte Milligan. For more background, see this pdf.
† Nobody else was ever executed under General Order 38.
But it was for what Pickett did on this date in 1864 — much less well-recalled today but to the 1864 New York Times correspondent exemplifying “the madness of rebel leaders” — that he had to flee to Canada after the war, for fear of being prosecuted for committing a war crime.
North Carolina men in particular had a reputation (of arguable veracity) for absenting themselves; and, as the state as a whole was the most reluctant (and last) seceder, no small number of those deserters were ducking out for ideological reasons. Plenty of onetime Confederate conscripts who conceived greater loyalty to the Union than to their state shed gray uniforms for blue.
Licking his wounds from the New Bern sortie down the road at Kinston, Pickett recognized a couple of his prisoners as his own former soldiers. They had a testy exchange with the beaten general, and Pickett had them up for a summary court martial in a flash. On February 5, Joe Haskett and David Jones were hanged for desertion.
There followed an interesting exchange between the rival commanders.
Intending to forestall any tit-for-tat killings of POWs, the Union general warned Pickett to treat them humanely.
Dept. of Virginia and North Carolina, Confederate Army:
General: I have the honor to include a list of 53 soldiers of the U. S. Government who are supposed to have fallen into your hands on your late hasty retreat from before New Berne. They are the loyal and true North Carolinians and duly enlisted in the Second North Carolina Infantry. I ask for them the same treatment in all respects as you will mete out to other prisoners of war.
I am, very respectfully, your obedient servant, JOHN J PECK
Pickett must not have appreciated having his martial prowess busted on by his opposite number, because he returned a sarcastic reply promising to use Peck’s list to identify deserters. (In a subsequent letter, he threatened to meet retaliations with 10-for-1 hangings. Pickett showed an “imperious and vaunting temper” in the postwar judgment of Attorney General Holt. Or more directly put, he comes off as an asshole.)
GENERAL: Your communication of the 13th instant is at hand. I have the honor to state in my reply that you have made a slight mistake in regard to numbers, 325 having “fallen into your(our) hands in your (our) late hasty retreat from before New Berne,” instead of the list of 53 with which you have so kindly furnished me, and which will enable me to bring to justice many who have up to this time escaped their just deserts. I herewith return you the names of those who have been tried and convicted by court-martial for desertion from the Confederate service and taken with arms in hand, “duly enlisted in the Second North Carolina Infantry, U S Army.” They have been duly executed according to law and the custom of war.
Your letter and list will, of course, prevent any mercy being shown any of the remaining number, should proper and just proof be brought of their having deserted the Confederate colors, many of these men pleading in extenuation that they have been forced into the ranks of the Federal Government.
Extending to you my thanks for your opportune list,
I remain, very respectfully, your obedient servant,
G. E. PICKETT
He did it, too.
The Confederate chaplain John Paris recounted for his side’s press the scene, a baker’s dozen of men on a large platform, heads sacked, an unknown cross-eyed executioner waiting to strip the bodies of their clothes as payment. Most were local boys, dying shockingly under the eyes of their own family and acquaintances. Reportedly, a number of shaken Confederate soldiers deserted to New Bern after witnessing the scene.
The thirteen marched to the gallows with apparent resignation. Some of them I hope were prepared for their doom. Others I fear were not. On the scaffold they were all arranged in one row. At a given signal, the trap fell, and they were in eternity in a few moments. The scene was truly appalling. But it was as truly the deserters doom. Many of them said I never expected to come to such a end as this. But yet were deserters, and as such they ought to have expected such a doom. The names of these misguided men were, John I Brock, Wm. Haddock, Jesse Summerlin, A I Brittain, Wm. Jones, Lewis Freeman, Calvin Huffman, Stephen Jones, Joseph Brock, Lewis Taylor, Charles Cuthrell, W. C. Daughtry and John Freeman.
The knell of vengeance has sounded. … deserters in North Carolina must now open their eyes, from the mountain to the seaboard. Desertion has become in our army a desperate disease, and desperate cases require desperate remedies. Let fathers, mothers, brothers, sisters and wives, exhort their friends at all times to be faithful to their country under all circumstances.
In all, 22 alleged deserters hanged over the course of February in this affair, the 13 executed together on February 15 obviously accounting for the lion’s share. The incident is the likely inspiration for the novella published later in 1864 by a Confederate North Carolina cavalryman: The Deserter’s Daughter; most certainly, Kinston made the rounds in the North to great indignation.
And an event so notorious was bound to draw attention with the end of the war: even in 1864, the New York Times had editorialized demanding “instant and relentless retaliation … there could be no such thing as acquiescence or empty protest. Even if the Government could bring itself to this abject mood, the public indignation would not tolerate it.” Officers who had been stationed at New Bern did not neglect to keep this sentiment alive in the chain of command, pushing for punitive action to avenge their former comrades.
In the end, there would be none.
Playing it safe, Pickett skipped out for Canada (and even changed his appearance) in 1865 as a board appointed by Secretary of War Edwin Stanton opined that he and other parties to the hangings were “guilty of crimes too heinous to be excused by the United States government … there should be a military commission immediately appointed for [their] trial … to inflict upon [them] their just punishment.” That was especially so as it emerged that some of the hanged had “deserted” from stuff like bridge guards and state militias — not (in the view of prosecution-minded Unionists) the Confederate army proper.
But as the investigations continued into 1866, they zeroed in on Pickett as their specific target. And, they ran out of steam — or into a stone wall.
In 1866, Pickett appealed from exile to Ulysses S. Grant, who just so happened to be an old West Point chum of Pickett’s.* “Certain evil disposed persons,” Pickett wrote, “are attempting to re-open the troubles of the past.” With the Supreme Court’s Ex parte Milligan ruling, the prospect of a military tribunal evaporated.
Grant had the case shelved, even against Congressional appeals, until everybody just gave up and dropped it. “I do not see how good, either to the friends of the deceased, or by fixing an example for the future, can be secured by his trial now,” Grant said once of his old associate. Plus ça change.
* In fairness to U.S. Grant, we are bound to report his stated reason for opposing any prosecution of Pickett: it would violate the grant of clemency he himself had made to secure General Lee’s surrender at Appomattox.