Circa1865

Below, Alexander Stephens reviews the constitutional dilemma Abraham Lincoln faced when formulating his plan to resist the American South’s decision for political independence from the industrialized north.

Congress Alone Has the Power

“[Mr. Lincoln had] sworn to “preserve, protect and defend the Constitution” and “faithfully to execute the office of President of the United States.” This oath imposed a solemn obligation on him not to violate the Constitution, or to exercise, under color of his office, any power not conferred upon him by that instrument. He was required to see to the faithful execution of the laws of the United States, as passed by the Congress of States, and as construed by the Judiciary.

He said in the first of these proclamations that he made a call for the militia “in virtue of the power vested in him by the Constitution and the laws.”

But no such power was vested in him by the Constitution, nor was there any law authorizing him “to set on foot” the naval blockade as he did in the second of these proclamations. He said he did this in pursuance of law, but there was no such law.

In reference to the first proclamation, Congress alone has power, under the Constitution, to declare war and raise armies. Congress alone has the power to provide by law, for calling out the militia of the several States.

The President under the Constitution has no power to call out [State] militia to suppress an insurrection in a State, except “on application of the Legislature or the Governor, when the Legislature cannot be convened.” This was one of the provisions of the United States Constitution which Mr. Lincoln swore to “preserve, protect and defend.”

That clause of the Constitution is amongst the mutual covenants between the States guaranteeing to each a “Republican Form of Government” and protection against invasion and domestic violence.” This contemplated and authorized no interference whatsoever on the part of the Federal authorities with the internal affairs of the several States, unless called upon for that purpose, unless specifically requested by a State.

On this point, Mr. Stephen Douglas, in his speech of March 15^th, in the U.S. Senate, in the policy of withdrawing Federal troops from the forts in seceded States, was so clear, conclusive and unanswerable. Mr. Douglas said:

“But we are told that the President is going to enforce the laws in the seceded States. How? By calling out the militia and using the army and navy!? These terms are used as freely and flippantly as if we were in a military government where martial law was the only rule of action, and the rule of the Monarch was the only law to the subject.

Sir, the President cannot use the Army or the Navy, or the militia, for any purpose not authorized by law; and then he must do it in the manner, and only in the manner, prescribed by law. It must be requested by the State’s legislature, or Governor.”

(A Constitutional View of the Late War Between the States, Vol. II. Alexander H. Stephens Sprinkle Publications, 1994 (original 1870), pp. 397-402)

In late-March 1861 it was believed by most Americans in the South – even those devoted to political independence from the north – that the policy of secession was the surest way of securing a redress of grievances from northerners – and hopefully bring them back to respecting constitutional principles. Lincoln’s proclamations of war came instead, backed by troops from northern States.

A Northern Conspiracy

“In late March 1861 the understanding in Washington was that the newly inaugurated president had determined to withdraw all United States forces from the limits of the newly formed Confederate States.

It was at this juncture, however, that seven Northern Governors hastened to Washington, and then and there organized their “Conspiracy,” and by appeals to Mr. Lincoln, and tendering to him their organized military forces, caused him to change his policy and to adopt theirs, which aimed at an entire overthrow of the Constitution of the United States and the federative principles of government upon which it was based.

It was by and through its active agency that Mr. Lincoln’s policy was changed, though not communicated to the Confederate States commissioners who were left with peaceful assurances from Lincoln’s Secretary of State, Seward.

(A Constitutional View of the Late War Between the States, Vol. II. Alexander H. Stephens Sprinkle Publications, 1994 (original 1870), p. 354)

Gen. Henry Halleck told his invasion forces in 1861 that Southerners “have been warned that we come to oppress and plunder. By our acts we will undeceive them.”

In November 1861, Gen. John Dix prepared his invasion of Virginia’s eastern shore and spoke of “giving [Virginians] them the strongest assurances of kind treatment and protection . . . they may be gained over without bloodshed.” Dix added that Virginians “have got it in their heads that we want to steal and emancipate their Negroes.” Despite these pronouncements of deliverance from despotic “rebel” rule, the reality told a different story.

A colonel of the 20^th NY Volunteers at the Outer Banks of North Carolina wrote his commanding officer: “I regret to be compelled to state that the conduct of the men and some officers of my command has been that of vandals.” The descent into total war had begun.

Not a War of Oppression

“Few northerners sought the overthrow of slavery, for although most considered the institution morally corrupting and economically stifling and wanted to halt its spread, they deemed blacks unfit for freedom in a republic.

The northern-dominated U.S. Congress of July 1861 affirmed the narrow goals of the Crittenden Resolution, which it passed with hardy a dissenting vote. It declared “that this war was waged, on our part, in any spirit of oppression, nor for any purpose of conquest or subjugation, nor purpose of overthrowing or interfering with the rights or established institutions of these States, but to defend and maintain the supremacy of the Constitution and to preserve the Union, . . . as soon as these objects are accomplished the war ought to cease.”

These last twelve words reflected a fear that a prolonged war might rage out of control, burst its bonds and devour the very ideals and institutions it was meant to preserve. Lincoln himself worried that an extended conflict would “degenerate into a violent and remorseless revolutionary struggle.”

(When the Yankees Came: Conflict & Chaos in the Occupied South, 1861-1865. Stephen V. Ashe. UNC Press, 1995, pp. 25-27)

In the judgement of George Washington, the government of the US was in form and nature a “Confederated, or Federal Republic” and all States within were small republics themselves. Further, the federal agent of the States was not a “republic,” but only the assigned agent of these individual republics. Montesquieu affirmed that in a confederation, the States do not forfeit or part with their individual sovereignty. Philosopher and diplomat Emmerich de Vattel asserted as well that “several sovereign and independent States may unite themselves together by a perpetual Confederacy without ceasing to be, each individually, a perfect State, and together constitute a federation.

Abraham Lincoln ended this original intent of the Founders in 1861 with his war upon States wishing to voluntarily depart the 1789 agreement. Alexander H. Stephens wrote postwar that the 1861-1865 conflict was the result of Lincoln’s abuse of powers and forced national consolidation.

Washington’s Confederate Republic

“In the popular mind in the post-Revolution time, those representing the citizens of the States at large, each acting for themselves in their sovereign capacities.

“[The various] demonstrations, devices, mottoes and symbols, clearly showed how the great mass of people, in all the States, understood the new Constitution. It was nothing but a more perfect bond of union between the States. “Federal” was the watchword of the day in Boston, New York, Philadelphia, Baltimore, Richmond and Charleston. It was the grand symbolized idea throughout the whole length and breadth of the land. There can be no doubt that the people thought they were adopting a Federal Constitution – forming a federated union.

Now then, what is the meaning of this word “federal,” which entered so deeply into the thoughts, hearts and understandings of the people of that day?

Dr. Johnson, the highest authority of that day, in his Dictionary, thus defines the word: Federal – (Foedus, Lat.)  relating to a League or Contract. Federate, he defines (Federatus, Lat.) leagued, joined in a Confederacy. The great American lexicographer Noah Webster, says of this word “Federal,” that it is derived from the Latin word “Foedus” which means a League. A League he defines to be “an Alliance or Confederacy between Princes or States for their mutual aid or defense.” And in defining the meaning of the word “Federal,” he uses this language: “Consisting of a Compact between States or Nations; founded on alliance by contract of mutual agreement; as, a Federal Government, such as that of the United States.”

Federal, from its very origin and derivation, therefore, has no meaning and can have none, disassociated from a Compact or Agreement of some sort, and it is seldom ever used to qualify any Compacts or Agreements except those between States or Nations. So that Federal and Confederate mean substantially the same thing.

Washington, in one of his letters which I have just read, spoke of the new Government as “a Confederacy.” In another, to Sir Edward Newenham, dated the 20^th of July, 1788, he speaks of the new Government then ratified by enough States to carry it into effect as a “Confederated Government.” In . . . 1789 he expressed his conviction that “his happiness . . . that “the Senate would at all times cooperate in every measure which may tend to promote the welfare of “this Confederated Republic.” These are the terms by which he characterized “the union” after the present Constitution was formed and after it was in operation. There is no difference between the words Federal and Confederated as thus used and applied. We see that Washington used them both, at different times, to signify the same thing, that is, the Union of the American States under the Constitution.”

(A Constitutional View of the Late War Between the States, Alexander H. Stephens. Sprinkle Publications, 1994 (Original: S.A. George, Printers, 1868), pp. 167-170)

The author below was born in Ireland in 1822 and 9 years later came with his family to Philadelphia. He later studied law and theology before moving to Iowa in 1843 and was admitted to the bar in 1847. Politically active, Mahony was elected to the Iowa House of Representatives twice; co-founded the Dubuque Herald in 1852 and elected twice as Dubuque County sheriff.

He was arrested in mid-1862 for criticism of Lincoln’s government, held in Old Capitol Prison, and released in November after signing a document stating that he would “form an allegiance to the United States and not bring charges against those who had arrested and confined him.”

It was Lincoln’s predecessor, James Buchanan, and his Attorney General Black, who both determined that to wage war against a State and adhere to its enemies was the Constitution’s very definition of treason.

Lincoln’s War Proclamation

“One of the most flagrant acts of Executive violation of the United States Constitution was the proclamation of the third of May 1861, providing for the increase in number of the regular army and navy, and prescribing that volunteers called into the service of the United States under that proclamation should serve for a period of three years if the war might continue during that period. As part of the history of the subversion of the government, this proclamation is referred to as evidence of fact.

The United States Constitution, in the most positive, express and unequivocal terms, delegates to Congress the sole authority both to raise armies and to make rules for their government, as well as those of the naval force. This Constitutional provision was disregarded by the President in his proclamation of the third of May. He assumed the power in that proclamation which the Constitution had vested in Congress alone, and which no one ever supposed that a President had a right to exercise.

Thus, by almost the first official act of Lincoln did he violate the Constitution, which, little more than a month previous he had taken an oath to “preserve, protect and defend.” This oath, it seems, he has since construed so that it does not require him to obey the Constitution, as if he could both preserve, protect and defend it by the same act which disobeys it.

It was in vain that the Constitution vested in Congress only the power to raise and support armies, to provide and maintain a navy, and to make rules for the governing of the land and naval forces. Lincoln by his proclamation assumed the right and power to do all this – a right which scarcely any monarch, if a single one, would dare to assume, and a power which no one but a usurper would attempt to exercise.”

(Prisoner of State. Dennis A. Mahoney. Addressed to Secretary of War, Edwin Stanton and entered by Act of Congress in the year 1863. Published by Crown Rights Book Company, 2001, pp. 29-31)

Before condemning the American South for its use of African labor in its agricultural production, one must first highlight the roles of the African tribes who sold their own people into slavery. One must add to this the Portuguese, Spanish, British and French – and later New Englanders who conducted the transatlantic slave trade. Below, prominent Wilmington attorney and Attorney General of the Confederate States, lamented postwar the inauguration of slavery into Carolina by British Colonial Governor Yeamans.

A Most Portentous Event

“We draw a veil over the sad scenes enacted there, but we recall the fact that it was not until after the slave traders of the North had received full value of their human merchandise from their Southern brethren that our neighbors began to realize the enormity of the institution of slavery.

With reference to the introduction of slavery into Carolina by the Colonial Governor John Yeamans, from Barbados in 1671, the late George Davis said:

‘This seems to be a simple announcement of a very commonplace fact; but it was the little cloud no bigger than a man’s hand. It was the most portentous event of all our early history. For Yeaman’s carried with him from Barbados his negro slaves; and that was the first introduction of African slavery into Carolina. (Bancroft, V2, p. 170; Rivers, p169.)

If, as he sat by the camp-fire in that lonely Southern wilderness, Yeamans could have gazed with prophetic vision down the vista of two hundred years, and seem the stormy and tragic end of that which he was then so quietly inaugurating the beginning, must he not have exclaimed to Ophelia, as she beheld the wreck of her heart’s young love:

“ ‘O, woe is me! To have seen what I have seen, see what I see’”!

(Tales and Traditions of the Lower Cape Fear, 1661-1896. James Sprunt. LeGwin Brothers, Printers & Publishers, 1896.

The following is noted as “a summary of the report made by Tyler to Virginia Gov. Letcher on his return from Washington. The text of this report, with the letters passing between Tyler & Buchanan, was published in the Richmond Daily Dispatch, February 1861.”     The fortress was built to protect Virginia, not wage war upon it.

American Citizens Targeted

“Tyler left Washington on January 29 with the expectation of returning to the Washington Peace Convention, which was to assemble on February 4. On the day before leaving, he sent another letter to President James Buchanan, in lieu of a call which other engagements prevented. In this letter he expressed appreciation of the courtesies that had been shown him and pleasure at hearing the President’s message read in the Senate.

Tyler’s letter also spoke of a rumor that at Fortress Monroe the cannon had been put on the landward side and pointed inland. His comment of this report was “that when Virginia is making every possible effort to redeem and save the Union, it is seemingly ungenerous to cannon leveled at here bosom.”

To this letter Buchanan sent a very courteous reply, stating that he would inquire into the rumors with reference to Fortress Monroe’s cannon.”

(John Tyler, Champion of the Old South. Oliver Perry Chitwood. American Political Biography Press, 1939 – pg. 438)

It is said that England in 1861 ran twice as many spindles as all other countries combined, with Lancashire at the center. The London Times editorial of September 19, 1861, stated that one-fifth of the entire British population was held to be dependent, directly or indirectly, upon the prosperity of Southern cotton, which accounted for 80 percent of the total English importation of raw cotton. Additional cotton was sent north to the busy cotton mills of Lowell, Massachusetts.

And it cannot be forgotten that it was Massachusetts tinkerer Eli Whitney who brought forth the cotton gin. This invention replaced the slow method of pulling seeds by hand, increased cotton crop yield and helped perpetuate African slavery in America.

Cotton for the North and England

“For ten years past whenever Southern threats of secession had been indulged in, the writers and politicians of that section had expanded upon cotton as the one great wealth-producing industry of America and as the one produce which would compel European acquiescence in American policy, whether of the union, before 1860, or if the South, if she should decide upon independence.”

A writer in DeBow’s Review declared “the South annually throws upon the world for the poor & the naked, [and] we are doing more to advance civilization . . . than all the canting philanthropists of New England & Old England will do in centuries. Slavery is the backbone of the Northern commercial as it is of the British manufacturing system . . .”

Before the Civil War was underway Charles Greville wrote to Clarendon: “Any war will be almost sure to interfere with [the South’s) cotton crops, and this is really what affects us and what we care about. With all our virulent abuse of slavery and slave-owners, and our continual self-laudation on that subject, we are just as anxious for, and as much interested in, the prosperity of the slavery interest in the Southern States, as the Caribbean, as the Carolinian and Georgian planters themselves, and all Lancashire would deplore a successful insurrection of the slaves [by northern abolitionists], if such a thing were possible.”

(Great Britain and the American Civil War. Volume II. Ephraim Douglass Adams. Alpha Editions, 2018 (original 1924), pp. 300-301)

The Washington Peace Conference was urged on by Southern States as a last-ditch effort to salvage political union with the north through compromise – and they could rightly be referred to as the true “Unionists.” Working against Southern efforts for peace was Lincoln, who feared any compromise would weaken his minority party and limit his power.

Party Above Union

Early in the session (February 7^th) the Washington Peace Conference paid its respects to the outgoing President James Buchanan as a body. The members were received in the East Room of the White House and presented to the Buchanan by former-President John Tyler.

A similar courtesy was extended to Lincoln when he arrived in Washington on February 23^rd. As Tyler presented several distinguished delegates to him, Lincoln made brief comments, some of which were of a jocular character. His humor, however, was not particularly happy and hardly in keeping with the occasion. It may be said that Lincoln was using this method to ward off any embarrassing questions that might be asked. If this were his object, he was successful, as no commitments were made.

The strained amenities and the simulated courtesies exchanged between the ex-President and the President-elect were in the nature of a little drama typifying the end of one era and the beginning of another. Or, it might be regarded as a pleasing, trivial curtain raiser to that awful tragedy that marked the transition from the Second to the Third Republic. For the Second Republic was soon to undergo the pangs of death and the Third Republic to experience the painful throes of birth.

There was also the striking contrast in the personalities of the two men. In the case of Lincoln, tradition has so exaggerated his virtues and covered up his faults that one of the most human characters in history has been idealized into a demigod. With Tyler, on the other hand, his virtues have been so minimized and defects so magnified that the reputation of a refined and well-meaning gentleman has been handed down to us as that of a wicked renegade.”

(John Tyler: Champion of the Old South. Oliver Perry Chitwood. American Political Biography Press. 1939, pp. 448-449)

The political development of the United States has passed through three stages since independence from England. The stages are characterized as those of the First Republic (1776-1789); the Second Republic (1789-1861); and the Third Republic (since 1861).

Lincoln’s Great Blunder

“Former-President John Tyler wrote his wife the day after Virginia’s withdrawal from the 1789 Constitution.

“The die is cast and Virginia’s future is in the hands of the god of battle.” The contest will be one full of peril, but “there is a spirit abroad in Virginia which cannot be crushed until the life of the last man is trampled out. The numbers opposed to us are immense; but twelve thousand Grecians conquered the whole power of Xerxes [Darius] at Marathon, and our fathers, a mere handful, overcame the enormous power of Great Britain. Do, dearest, live as frugally as possible in the household, – trying times are before us.”

Tyler regarded the conflict between the North and the South as a great blunder, the chief blame for which must be laid at the door of Lincoln. For by reinforcing Fort Sumter, he had brought on a clash which could have been avoided. Lincoln had made the terrible mistake of “having weighed in the scales the value of a mere local fort against the value of the Union itself.” He even accused the new president of acting not from patriotic motives but from a desire to consolidate behind him his faction of the Republican party.

The South, he implied, was justified in its attack on Fort Sumter. “If the Confederate States have their own flag, is anyone so stupid as to suppose that they will suffer the flag of England or France or of the northern States to float over the ramparts in place of their own?

As Tyler believed in the sovereignty of the States, he considered that under existing circumstances secession was legal and coercion revolutionary. The breakup of the union was not caused by the secession of the South but by the nullification practiced by the North. The latter section’s disregard of the fugitive slave law, its rejection of decision of the United States Supreme Court, and the commission of other unconstitutional acts had really destroyed the union of 1789. If there was any rebellion involved in this dissolution of the partnership, the “rebels” were not the Southerners, but the Northerners.

For the former had been true to the principles of the Constitution and the latter had violated them. The North had thus pulled down the house and the South had only left its ruins.”

(John Tyler: Champion of the Old South. Oliver Perry Chitwood. American Political Biography Press. 1939, pp. 455-456)