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)

It became clear in the postwar that both Grant and Lincoln were responsible for the excessive mortality in the South’s prison camps, especially Camp Sumter – aka-Andersonville. But northern politicians still “waved the bloody shirt” in 1876 with James Blaine of Maine claiming Jefferson Davis “was the author, knowingly, deliberately, guiltily, and willfully, of the gigantic murders and crimes at Andersonville.” Benjamin Hill of Georgia replied to him: “If nine percent of the [northern] men in Southern prisons were starved to death by Mr. Jefferson Davis, who tortured to death the twelve percent of the Southern men in Northern prisons?”

Prior to his release from postwar captivity, former Vice-President Alexander H. Stephens of Georgia was asked himself about the conditions at Camp Sumter, also known as the Andersonville prisoner of war camp.

The Horrors of Andersonville

“Regarding treatment of prisoners at Andersonville and other places, which was brought up, I said that the matter had caused me deep mortification and pain. From all I had heard, the sufferings of prisoners were terrible. I had no idea, however, that these sufferings were by design or system on the part of Mr. Davis and other authorities at Richmond. Something akin to what might be styled indifference or neglect toward our own soldiers on the wounded and sick lists I have witnessed with distress. To this subject I have given a great deal of attention.

I had never seen in Mr. Davis any disposition to be vindictive toward prisoners of war. I had no idea that there was any settled policy of cruelty on his part to prisoners.

In all my conversations with him on the subject of prisoners, he put the blame of non-exchange on the authorities at Washington: he always expressed earnest desire to send home all we held upon getting in exchange our men equally suffering in northern prisons. Our prisoners, it was said, were treated as well as they could be under the circumstances; those at Andersonville were crowded into such a miserable pen because we had no other place in which to secure them. They had the same rations as our soldiers, who, to my own knowledge, suffered greatly themselves from food shortages, not only in our hospitals, but also in the field.

The advice I had given was to release all our prisoners on parole of honor, whether the authorities at Washington exchanged theirs or not. I had advised such a course as one of humanity and good policy.

Against it was urged that if we were to release all our prisoners, our men would be held and treated not as prisoners of war but as traitors and would be tried and executed as such; our authorities must hold northern soldiers as hostages for ours.  And I could not, after looking over the whole matter, come to any other conclusion than that some blame rested on the authorities at Washington.

War is at best a savage business; it never had been and never would, perhaps, be waged without atrocities on all sides. Hence, my earnest desire during the late conflict to bring about pacification by peaceful negotiations at the earliest possible moment.”

(Recollections of Alexander H. Stephens: His Diary While Imprisoned. Myrta Lockett Avary, ed., LSU Press, 1998 (original 1910), pp. 444-446)

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)

“The Greeks and Romans had no standing armies, yet they defended themselves. The Greeks by their laws, and the Romans by the spirit of their people, took pains to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige them to repair to the standard of his country whenever that was raised. This made them invincible; and the same remedy will make us so.”  Thomas Jefferson to Samuel Cooper, March 1814

Fear of Standing Armies

After the HMS Leopard seized American sailors in mid-1807 amid deteriorating relations with England, Congress began debating an increase in the US military. Though Thomas Jefferson’s administration had severely cut troop numbers in 1802, in 1808 the strength in men was only 6500.

“In 1811, Secretary of War William Eustis asked for 10,000 men to be added to the regular army. Senator William Branch Giles, a Virginia Democrat but violently anti-Madison, proposed 25,000 instead of 10,000.

Now began a lively debate in Congress between supporters and detractors of standing forces. Supporters insisted that a regular army of 30,000 could not possibly endanger civilian control of the military.

Detractors, on the other hand, drew upon history to prove that standing armies had more often than not overthrown free governments. Some detractors wanted to see the regular army abolished, for them the country would be forced to engage in nothing more than defensive military operations.

Neither geographical origin not party seemed wholly to govern the way men voted on the choice between regulars and militia. Federalists from Massachusetts and Connecticut reliance on militia because of the excellence of their own citizen soldiery, while Federalists from most other States usually spoke in favor of regulars. New York representative Peter B. Porter favored both types; he called the militia the shield of the nation and regulars the sword. His metaphor displeased most Democrats who did not want the nation brandishing a sword.

In the end all Senate Federalists joined with some Democrats to enact Giles’ augmentation – with Henry Clay and Porter pushing the Senate bill through the House, becoming law on 11 January 1812. The result was 10 regiments of infantry, 2 of artillery, and 1 of light dragoons – though the ranks were never more than half-filled. The new law made provision for two major-generals and five brigadiers, but not for a general-in-chief to give professional advice to the civilian secretary of war.

Twice in four years, in 1808 and again in 1812, Congress had tripled the size of the regular army on paper. One month after the second tripling it gave the President permission to alert 50,000 volunteers, appropriated $1 million to support them, and if called into federal service, to serve for one year.

Major-General Henry Dearborn requested militia from Connecticut in June 1812, got he got instead a note from Acting-Governor John Cotton Smith. The State council and concluded that the request was unconstitutional on two grounds: (1), the President had not indicated that there existed any of the three exigencies stipulated in the Constitution – an invasion, an insurrection, or a combination to break the laws – and (2), Connecticut militia could not be placed under the immediate command of federal officers when proper State officers were already designated for them.

The US Secretary of War, entering the dialogue, insisted that an invasion did exist or was imminent. The governor countered that neither a declaration of war nor the nearby cruising of a hostile fleet constituted an invasion or even the threat of one. He would send no State troops.”

(The War of 1812. John K. Mahon. Da Capo reprint, University of Florida Press, 1972, pp. 3-4; 32)

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)

Despite their formerly-invincible political influence waning in the early 1890s, the Grand Army of the Republic (GAR) took aim at school textbook authors who suggested that the American South may have fought for the same independence and liberty their forefathers had in 1776 – branding it “disloyal history.”

School book authors mentioned below are John Fiske (1842 – 1901), born in Hartford, Connecticut; and Daniel H. Montgomery (1837-1928), a graduate of Brown University in Rhode Island. Both States dominated the colonial transatlantic slave trade.

GAR War Upon “Disloyal History”

“Another phase of their patriotic campaign was the Grand Army’s intensified textbook warfare, in which the Confederate Veteran’s finally took up cudgels for the authors and point of view of their own section. Union veterans, feeling the general public reaction against liberality to old soldiers after the pension gift of 1890, sought some explanation for their declining prestige.

The GAR veterans concluded that it lay in the growing tendency of literature and textbooks to minimize the American South’s “crime.” The Boston Grand Army Record asserted:

“It is often spoken of in [Grand Army] Post meetings and at Camp Fires and on other public occasions that the general public opinion is not so favorable to the surviving Union soldiers as it formerly was . . . voters who have studied School Histories since 1865 have no idea what the Union Army contended for, what sacrifices they endured . . . [and] the present emasculated public opinion regarding the Right and Wrong of the Rebellion is the natural fruit of these emasculated School Histories. The indifference regarding the duties of the present generation to the surviving Union soldiers is the legitimate product of False School histories written by Professor Fiske and Reverend Montogomery imported from England. Englishmen helped the Rebels when the United States was in what seemed its death throes. We do not now need the services of Englishmen to write up the Rebellion in our School History.”

While national and State GAR headquarters showered educational institutions with angry complaints, local GAR committees paid grim calls upon school superintendents. These committees made scathing reports on textbooks by Southern writers and wrote even more bitter reviews of those produced in the north for national sale.

A typical expression was that of the Massachusetts GAR that many histories were “open to the suspicion that that they had “soothed the wounded spirit of secession for the sake of Southern trade.”  They give over-prominence and over-praise to the  leaders and movements of the secession forces, and so treat the events of the war period as to leave the impression upon the youthful mind that the war was merely a quarrel between two factions, in which both were equally to blame.”

(Veterans in Politics: The Story of the GAR. Mary R. Dearing. LSU Press, 1952. p. 480-481)

Lt. John M. Kell was second in command on the Confederate States raider Alabama and wrote his wife in late December 1862 that “we are in quiet anchorage at the Arcas Cayes, and here we passed the holy season of Christmas. The time so full of home delights and good cheer was to be to us but a time of memories and work.” He wrote her the following on the first day of the New Year:

Christmas and the New Year at Sea

“January 1^st, 1863. Another New Year has rolled around, but alas, how few the inmates of the broken homes in our beloved Southland that are permitted to-day to greet each other with the time-honored salutation, A happy New Year!”

Let us not sorrow or despond but rather lift up grateful hearts that are still able to defend our homes and firesides from the wicked invasion of the hordes of the enemy and their vandal minions, and God grant that ere another year rolls around our land may rejoice in peace and acknowledged independence!”

(Recollections of a Naval Life, including the Cruises of the CSA Steamers, Sumpter and Alabama. John McIntosh Kell. Neale Company, Publishers. Washington. 1911, pg. 207.)

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)

The men of the 51^st Pennsylvania Regiment, mostly of Harrisburg, mustered in late 1861 to help “save the Union.” Their early service was at North Carolina’s Outer Banks through the capture of New Bern in March of 1862, where blue-coated soldiers ransacked homes and businesses. Afterward, empty troopships returning northward were said to be loaded with stolen furniture, paintings, libraries, jewelry and antiques. It is recalled that Willam Penn and his Quakers were slaveholders, and in the early 1700s were kidnapping Tuscarora children in North Carolina for slavery in Pennsylvania.

In mid-July 1863, the 51st Regiment was attached to Gen. W.T. Sherman’s army. Ordered to destroy anything considered “military or commercially related” at Jackson, the regiment first helped themselves to the possessions of the citizenry.

The Sacking of Another American City

“After the 51^st Pennsylvania Regiment under Col. John Hartranft planted its colors in the front of Mississippi’s State Capitol at Jackson, it stacked arms in the street. A detail was made to guard the stacks and another to guard prisoners who had been paroled at Vicksburg.

The remainder of the regiment not on special duty then broke ranks and ransacked the town for tobacco, whiskey and such valuables as had been left behind by the fleeing citizens on the retreat of Gen. Joe Johnston. Tobacco warehouses had been broken open, and the invaders freely supplied themselves with the weed of the very best brands; none other suited them now. Whiskey was the next thing to be sought out, and a copious supply was found and used. After supplying themselves to repletion with the above, then private property had to suffer.

Grocery, dry goods, hat, millinery and drug stores were broken open and “cleaned out” of every vestige of their contents; private dwellings entered and plundered of money, jewelry and all else of any value was carried off; crockery, chinaware, pianos, furniture, etc., were smashed to atoms; hogsheads of sugar rolled into the street and the heads knocked in and contents spilled.

About noon the Pennsylvania regiment was ordered to occupy a large fort near the city. As the regiment was marching out it made quite a ludicrous appearance, for the men were dressed in the most laughable and grotesque habiliments that could be found. Some clad in all female attire, some with hats having crowns a foot high, shawls, sunbonnets, frock skirts, with crinoline over all instead of underneath; in fact, everything was put on that a head, hand, arm, body, a foot or feet could get into, and . . . carrying bonnets and bandboxes in their hands.

They were followed by the colored females, yelling and screaming with delight, and begging the “Yankees” to “gib us dat bonnit” and “Massa, do please gib me dat frock.” By the time the regiment arrived at the fort the colored ladies were in possession of nearly every particle of female wear which the men had.”

(History of the Fifty-first Regiment of Pennsylvania Volunteers. Thomas H. Parker, King & Baird Printers, 1869. Pp. 363-365)