Circa1865

Not recognizing the withdrawal of States from the voluntary Union in 1861, English-born Sen. Edward D. Baker of Oregon responds below to former Vice President and then-Senator John Breckenridge of Kentucky. Baker reportedly appeared in the Senate that day in the uniform of a Northern colonel, riding whip and saber in hand, claiming that secession was rebellion and that South Carolina was to be subjugated into loyalty. This, ironically from a man born in England, was what George III attempted some 85 years earlier.  Baker was mortally wounded at Ball’s Bluff in October 1861.

Bernhard Thuersam, www.Circa1865.com

Subjugating Rebellion into Loyalty

“The senator from Kentucky stands up here in a manly way in opposition to what he sees is the overwhelming sentiment of the Senate, and utters reproof, malediction, and prediction combined. Well sir, it is not every prediction that is prophesy.

I confess Mr. President, that I would not have predicted three weeks ago the disasters which have overtaken our arms; and I do not think [if I were to predict now] that six months hence the senator will indulge in the same tone of prediction which is his favorite key now. I would ask him what would you have us do now — a Confederate army within twenty miles of us, advancing, or threatening to advance, to overwhelm your government; to shake the pillars of the Union; to bring it down around your head in ruins if you stay here?

Are we to stop and talk about an uprising sentiment in the north against the war? Is it not the manly part to go on as we have begun, to raise money, and levy armies, to organize them, to prepare to advance; when we do advance, to regulate that advance by all the laws and regulations that civilization and humanity will allow in time of battle? To talk to us about stopping is idle; we will never stop. Will the senator yield to rebellion? Will he shrink from armed insurrection? Will his State justify it? Shall we send a flag of truce?

When we subjugate South Carolina, what shall we do? We shall compel its obedience to the Constitution of the United States; that is all. Why play upon words? We do not mean, we have never said, any more. If it be slavery that men should obey the Constitution their fathers fought for, let it be so.

We propose to subjugate rebellion into loyalty; we propose to subjugate insurrection into peace; we propose to subjugate Confederate anarchy into constitutional Union liberty. When the Confederate armies are scattered; when their leaders are banished from power; when the people return to a late repentant sense of the wrong they have done to a government they never felt but benignancy and blessing — then the Constitution made for us all will be felt by all, like the descending rains from heaven which bless all alike.

Sir, how can we retreat? What will become of constitutional government? What will become of public liberty? What of past glories? What of future hopes? No sir; a thousand times no, sir! We will rally . . . we will rally the people, the loyal people, of the whole country. They will pour forth their treasure, their money, their men, without stint, without measure.”

(Edward D. Baker, Senate speech of August 1, 1861. The World’s Famous Orations, W.J. Bryan, editor, Funk & Wagnall’s, 1906, pp. 3-8)

The responsibility for the death of nearly one million Americans, considering death by combat, disease and starvation, military and civilian, must be laid at the feet of those like Charles Sumner of Massachusetts. Unwilling to compromise for the sake of peace and Union, his incessant insults against Americans in the South reached their climax in his attack upon Senator Andrew P. Butler of South Carolina. Senator Cass of Michigan delivered the official rebuke to Sumner, stating that “such a speech [was] the most un-American and unpatriotic that ever grated on the ears of the members of this high body – I hope never to hear again here or elsewhere.” For that verbal insult upon Senator Butler, Sumner received well-deserved gutta-percha punishment.

Bernhard Thuersam, www.Circa1865.com

No Compromise for Charles Sumner

“Of all the earnest, high-minded men and women who helped to drive a wedge between the North and the South during the years between the Mexican War and the Civil War, no one was more bent on forcing the issue than the famous senator from Massachusetts, Charles Sumner.

[An advocate of pacifism, in his] first important speech of his life, a patriotic address delivered in Tremont Temple on July 4, 1845, he had astounded his audience, accustomed to a conventional recital of the stirring deeds of the Revolution, by denouncing in scathing terms the misguided patriotism which glorified deeds of [the Mexican] war.

Sumner drove his point home by comparing the cost to the nation of the [USS] Ohio, a ship-of-the-line then lying in Boston Harbor, with the annual expenditure of Harvard College. It was not a tactful speech considering that the officers of the Ohio had been specially invited to grace the occasion, but then Charles Sumner was not a tactful man.

His lack of tact was as notorious as his lack of humor or his unconscious arrogance. Unlike most of the political figures of his generation, he was very much at home in Europe. Sometimes he wearied his friends at home by telling them of all the distinguished people he had met abroad in the course of his travels and yet, beneath the European veneer, there was a moral fervor about Sumner, a “sacred animosity” against evil, to quote his own words, that stamped him unmistakably as a New Englander.

In 1849, as Chairman of the Peace Committee of the United States, he had issued an address recommending that an American delegation attend the Second General Peace Congress to be held in Frankfort. Representatives of the leading nations of Europe were to present plans for the revision of international law and for the establishment of a World Court.

Sumner, who was known as one who believed that war was an outdated method of settling disputes, was chosen as one of the delegates to the Congress, but at the last moment he declined.

[T]here was something ironic in the fact that the champion of arbitration in 1850 stood out resolutely against sending any delegates from Massachusetts to [former President John Tyler’s] Peace Convention held in Washington on the eve of the war [in 1861]. In his frantic search for a compromise, Senator [John J.] Crittenden found no one more stubborn, more determined not to yield an inch, than Senator Sumner. [Sumner] . . . insisted that concessions [to the South] would settle nothing. “Nothing,” said Sumner, “can be settled which is not right. Nothing can be settled which is against freedom. Nothing can be settled which is against divine law.”

(No Compromise!, Arnold Whitridge, Farrar, Straus and Cudahy, 1960, pp. 120-126)

After South Carolina Congressman Preston S. Brooks administered a lesson to Charles Sumner, senator from the slave-trading State of Massachusetts, Brooks received new canes from all over the South. The canes were accompanied by emphatic suggestions that he promptly deliver additional beatings on Sumner for the insults toward his uncle and distinguished Senator Andrew P. Butler. Sumner feigned injury to attract sympathy from abolitionist newspapers.

Bernhard Thuersam, www.Circa1865.com

Sumner’s Rendezvous With a Gutta-Percha

“From the moment he took his seat in the Senate, Sumner’s conscience was always on parade. [And] according to Sumner, the Constitution did not sanction slavery, and since slavery was a monstrous evil it should be eliminated at once.

Freedom was national whereas slavery was only sectional.  In the official view of the South, which incidentally coincided with that of the Garrisonians, the founding fathers had expressly guaranteed slavery along with other forms of personal property.  Far from being a national evil, it was a national benefit, to the Negro as much as to the white man.

Sumner seized upon the controversy over Kansas, whether the territory was to come into the Union as a free or as a slave State, to pronounce what he called “the most thoroughgoing philippic ever uttered in a legislative body.”  It was an elaborate speech and it took five hours to deliver.

For those who expected an accurate presentation of the facts about Kansas it was a disappointment, but Sumner’s conscience was never concerned with facts unless the facts bore on the depravity of slaveholders. Sumner’s conscience directed him to pour more oil on the fire rather than water.

He began by assuming the truth of every charge made against the slave power in Kansas, and ignoring all the evidence on the other side. Major John Sedgewick, who was stationed in Kansas at the time . . . thought that most of the atrocities had been committed by the [Northern] Free Soil party, but any such evidence, even if it had come his way, Sumner would have brushed aside as the ravings of a lunatic.  He had prepared his speech with infinite pains, committed it to memory, practiced it before the glass, and nothing would induce him to alter it.

The crime against Kansas was nothing less than “the rape of virgin territory compelling it to the hateful embrace of slavery.” The criminal (slave power) has “an audacity beyond that of Verres, a subtlety beyond that of Machiavelli, a meanness beyond that of Bacon, and an ability beyond that of Hastings.”

The long string of erudite insults reached their climax in an attack upon the much beloved Senator Butler of South Carolina who, said Sumner, “has chosen a mistress to whom he has made his vows and who, although ugly to others, is always lovely to him; although polluted in the sight of the world, is chaste in his sight — I mean the harlot, Slavery.”

That Sumner honestly thought he was serving the cause of freedom by such language is hard to believe. Senator Cass of Michigan, a devoted Union man and not a slaveholder, delivered the official rebuke: “Such a speech — the most un-American and un-patriotic that ever grated on the ears of the members of this high body — I hope never to hear again here or elsewhere.”

While Senators were shaking their heads . . . Sumner was suddenly transfigured into a national hero, a martyr for freedom. The man responsible for this . . . was a Southerner, Congressman Preston S. Brooks of South Carolina, a nephew and a devoted admirer of Senator Butler.

[And] Brooks had made up his mind that the only suitable answer to Sumner was severe corporeal punishment. Accordingly, while Sumner was sitting at his desk after the Senate had adjourned, Brooks strode up to him and . . . struck him over the head with a gutta-percha cane.

How severely Sumner was injured has always been a matter of dispute, but by the time Brooks had finished his chastisement Sumner was lying on the floor unconscious. Southerners accused Sumner of shamming.

The doctor who attended him took four stitches in his scalp and declared him ready to return to duty after a few days of rest. [Sumner] complained of perpetual headache and nervous prostration, but Southerners pointed out that during a trip to Europe to recover his health he indulged in a continuous round of social entertainments that might well have reduced any traveler to a state of exhaustion.”

(No Compromise!, Arnold Whitridge, Farrar, Straus and Cudahy, 1960, pp. 125-127)

As asserted below, Americans in general seem unaware of the enormity of the Southern experience 1861-1865 and the aftermath of devastating defeat and subjugation. The author’s analogy brings needed perspective to an unnecessary war and death of a million Americans, counting military and civilian casualties.

Bernhard Thuersam, www.Circa1865.com

Suppressing the Consent of the Governed

“Imagine America invaded by a foreign power, one that has quadruple the population and industrial base. Imagine that this enemy has free access to the world’s goods as well as an inexhaustible supply of cannon fodder from the proletariat of other countries, while America itself is tightly blockaded from the outside world.

New York and Cincinnati have been taken. For months, Boston and Chicago have been under constant siege, the civilian population driven from their homes. Enemy forces roam over large parts of the country burning the homes, tools and food of the noncombatants in a campaign of deliberate terrorism.

Nearly eighty-five percent of the nation’s able-bodied men (up to 50 years of age) have been called to arms. Battlefield casualties have run to 39 percent and deaths amount to half of that, far exceeding those from any other war.

On the other hand, the enemy, though its acts and domestic propaganda indicate otherwise, is telling the American population that it only wants peace and the restoration of the status quo antebellum. Lay down your arms and all will be as before. What would be our state of morale in such conditions? Americans have never suffered such misfortune, have they?

Alas, they have. This was the experience of the Southern people from 1861-1865 in their lost War for Independence.

How hard the Southerners struggled for independence from the American Empire has been, and continues to be, suppressed by a nationalist culture that can only wonder: How could any group possibly have dissented from the greatest government on earth? But a very large number of Americans did no consent that government (the regime, after all, was supposed to be founded on the consent of the governed).

They were willing to put their dissent on the line in a greater sacrifice than any large group of Americans has ever been called on to make. Until finally, as a disappointed Union officer quoted by [author Gary] Gallagher remarked: “The rebellion [was] worn out rather than suppressed.”

(An Honorable Defeat, Clyde Wilson, Chronicles, October 1998, pg. 28)

Anthropologist Lewis Henry Morgan of New York wrote Calhoun in 1848 that “The feeling toward [the Negro] in the North is decidedly that of hostility. There is no respect for them. No wish for their elevation; but on the contrary a strong desire to prevent the multiplication of the race as far as it is possible to do so . . .” Former New York Governor (and later Union Major-General] John Adams Dix spoke of the “inferior caste” in free States: “Public opinion at the North – call it prejudice if you will – presents an insuperable barrier against its elevation in the social scale . . . A class thus degraded . . . will not multiply . . .” Pennsylvania Congressman David Wilmot in mid-1846 introduced a bill to ban African slavery from land acquired from Mexico.

Bernhard Thuersam, www.Circa1865.com

Northern Hostility Toward the Negro

“Closely interwoven with the northern fear of [Southern political] dominance was fear of the Negro himself, and the [Wilmot] Proviso, commonly called the “White Man’s Resolution” by the free-soilers, seems to have expressed a northern desire to keep the territories free not only of slaves, but of the black race.

The rhetoric of the free-soil movement is replete with expressions of hostility toward the Negro. One of the most notable instances occurs in James Russell Lowell’s allegorical treatment of the territorial issue in his enormously popular “Bigelow Papers.”

In this poem Lowell represents the Negroes as “long-legged swine” who ruin the territories, making them uninhabitable for the northern farmer. Anti-Negro expressions also found their way into free-soil platforms, albeit in muted form. The Barnburners Utica [New York] Convention called for preserving the western land “for the Caucasian race,” or in the more popular parlance of Thomas Hart Benton “keeping the territory clean of Negroes.”

One free-soiler assured the House of Representatives that he had little concern for “the degraded and degenerate blacks.”

Northern hostility toward the Negro is likewise revealed in the vehement response to a proposal by Governor William Smith of Virginia to export the State’s freedmen to the North. In his speech representing the great dangers involved in rejecting the Wilmot Proviso, [New York Congressman] George Rathbun referred incidentally to Governor Smith’s proposal.

“What do we say [to it]?” asked Rathbun. He gave the answer: “That there is no territory in the free States belonging to them [the Negroes]; that there is no place for them. As far as New York is concerned, should the refuse part of the population of Virginia reach our territory, we will carry them back to Virginia.”

Smith’s proposal caused such consternation in Ohio that the Democratic minority in the State legislature was almost able to force through a law prohibiting Negro immigration altogether. One Democratic congressman from Ohio . . . appealing to the fear and hatred of the Negro in the North, used Smith’s proposal as a justification for bowing to the will of the South on the Proviso question.

In the North, where the Negro population was relatively small, the means of assuring white supremacy was to exclude the Negro, and when he could not be physically excluded, he was excluded from civic life.

The key to the strong emotional commitment in the North to free soil was the overwhelming fear of the extension of an alien race, as well as of an alien institution, to the point where it would directly affect the Northern people. The Wilmot Proviso had such a strong appeal precisely because it expressed the Northern determination to prevent the spread not only of slavery but of the despised Negro as well.”

(Democratic Politics and Sectionalism, the Wilmot Proviso Controversy, Chaplain W. Morrison, UNC Press, 1967, excerpts pp. 70-73)

Jefferson Davis referred to Lincoln’s proclamation of emancipation in early 1863 as affording “our whole people the complete and crowning proof of the true nature of the designs of the party which elevated to power the present occupant of the Presidential chair at Washington and which sought to conceal its purpose . . .” Davis, like others familiar with the United States Constitution, saw that only the individual States could emancipate, not the government created by the States. And waging war upon the States was an act of treason under that same Constitution.

Bernhard Thuersam, www.Circa1865.com

For What are They Waging War?

January 5, 1863

“Friends and Fellow Citizens . . .

I am happy to be welcomed on my return to the Capital of our Confederacy – the last hope, as I believe, for the perpetuation of that system of government which our forefathers founded – the asylum of the oppressed and the home of true representative liberty.

Anticipating the overthrow of that Government which you had inherited, you assumed the right, as you fathers had done before you, to declare yourselves independent, and nobly have you advocated the assertion which you have made. You have shown yourselves in no respect to be degenerate sons of your fathers.

Men who were bound to you by the compact which their fathers and themselves had entered into the secure to you the rights and principles not only guaranteed by the Declaration of Independence, but rights which Virginia wisely and plainly reserved in her recognition of the government in which she took a part, now come to you with their hands steeped in blood, robbing the widow, destroying houses, seizing the grey-haired father, and incarcerating him in prison because he will not be a traitor to the principles of his fathers and the land that gave him birth.

Every crime which could characterize the course of demons has marked the course of the invader. The Northern portion of Virginia has been ruthlessly desolated – the people not only deprived of the means of subsistence, but their household property destroyed, and every indignity which the base imagination of a merciless foe could suggest inflicted, without regard to age, sex or condition.

In like manner their step has been marked in every portion of the Confederacy they have invaded.

They have murdered prisoners of war; they have destroyed the means of subsistence of families, they have plundered the defenceless, and exerted their most malignant ingenuity to bring to the deepest destitution those who only offence is that their husbands and sons are fighting for their homes and their liberties. Every crime conceivable, from the burning of defenceless towns to the stealing of our silver forks, and spoons, has marked their career.

It is in keeping, however, with the character of the people that seeks dominion over you, claim to be your masters, to try to reduce you to subjection – give up to a brutal soldiery your towns to sack, your homes to pillage and incite servile insurrection.

They have come to disturb our social organizations on the plea that it is military necessity. For what are they waging war? They say to preserve the Union.

Can they preserve the Union by destroying the social existence of a portion of the South? Do they hope to reconstruct the Union by striking at everything which is dear to man? BY showing them so utterly disgraced that if the question was proposed to you whether you would combine with hyenas or Yankees, I trust every Virginian would say, give me the hyenas.”

(Jefferson Davis, the Essential Writings, William J. Cooper, Jr., editor, Modern Library, 2003, excerpts, pp. 285-287)

The following is excerpted from a postwar letter written by Clement C. Clay of Alabama, to review the facts leading to the withdrawal of the Southern States in 1861, and Jefferson Davis’ efforts to forestall secession, seek conciliation with Northern leaders, and preserve the Union. It clearly identifies those wanting to preserve the Union, and lays the responsibility for disunion at the feet of Lincoln’s party.

Bernhard Thuersam, www.Circa1865.com

The Republican’s Stubborn Purpose

“Mr. Davis did not take an active part in planning or hastening secession. I think he only regretfully consented to it, as a political necessity for the preservation of popular and State rights’ which were seriously threatened by the triumph of a sectional party who were pledged to make war on them.

No “plan of secession” or “scheme of revolution” was, to my knowledge, discussed – certainly none matured – at the [Democratic] caucus, 5^th of January, 1861 . . . I have never heard that the caucus advised the South “to accumulate munitions of war,” or “to organize and equip an army of one hundred thousand men,” or determined “to hold on as long as possible to the Southern seats [in Congress].”

So far from it, a majority of Southern Senators seemed to think there would be no war; that the dominant party in the North desired separation from the South, and would gladly let their “erring sisters go in peace.” I could multiply proofs of such a disposition.

As to holding on to their seats, no Southern legislature advised it, no Southern Senator who favored secession did so but one, and none others wished to do so, I believe.

The “plan of secession,” if any, and the purpose of secession, unquestionably, originated, not in Washington City, or with the Senators or Representatives of the South, but among the people of the several States, many months before it was attempted. They followed no leaders at Washington or elsewhere, but acted for themselves, with an independence and unanimity unprecedented in any movement of such magnitude.

Before the election of Lincoln, all the Southern States, excepting one or two, had pledged themselves to separate from the Union upon the triumph f a sectional party in the Presidential election, by acts or resolutions of their Legislatures, resolves of both Democratic and Whig State Conventions, and of primary assemblies of the people – in every way in which they could commit themselves to any future act.

Their purpose was proclaimed to the world through the press and telegraph, and criticized in Congress, in the Northern Legislatures, in press and pulpit, and on the hustings, during many months before Congress met in December, 1860.

Over and above all these facts, the reports of the United States Senate show that, prior to the 5^th of January 1861, Southern Senators united with Northern Democratic Senators in an effort to effect pacification and prevent secession, and that Jefferson Davis was one of a committee appointed by the Senate to consider and report such a measure; that it failed because the Northern Republicans opposed everything that looked to peace; that Senator [Stephen A.] Douglas arraigned them as trying to precipitate secession, referred to Jefferson Davis as one who sought conciliation, and called upon Republican Senators to tell what they would do, if anything, to restore harmony and prevent disunion. They did not even deign a response.

Thus by their sullen silence, they made confession (without avoidance) of their stubborn purpose to hold up no hand raised to maintain the Union . . .”

(The Rise and Fall of the Confederate Government, Volume One, Jefferson Davis, D. Appleton and Company, 1881, excerpts, pp. 206-209)

In 1846 the US Treasury Department recorded that under the then-current tariff that the self-sustaining industry of the country was indirectly taxed “$80,000,000 annually, none of which went into the coffers of the government, but all into the pocket of the protected [Northern] manufacturer.” In addition to paying the vast bulk of the operation of government through tariffs paid, the South complained of the unequal distribution of public expenditures that went northward instead of toward them.

Bernhard Thuersam, www.Circa1865.com

Tribute Money to Northern Industry

“Virginia was the leader in the war of the Revolution, and her sons were the master-spirits of it, both in the field and in the cabinet. For an entire generation after the establishment of the government under the constitution, four of her sons – with an interregnum of only four years – were called, one after the other, to preside, each for a period of eight years, over the affairs of the young Republic and to shape its policy. Under the wise rule of her illustrious sons in the presidential chair, the Republic grew and its citizens flourished and prospered as no people had ever done.

During this time . . . the Northern population discovered that it would be better to sell their slaves to the South than to hold them, whereupon acts of so-called emancipation were passed in the North. [The North] got rid of its slaves, not so much by emancipation or any sympathy for the blacks as by sale, and in consequence to her greed.

About this time [1819] also Missouri – into which the early settlers had carried their slaves – applied for admission into the Union as a State. The North opposed it, on the ground that slavery existed there. The South appealed to the constitution . . . and asked for the clause which gave Congress the power to interfere with the domestic institutions of any State or with any of her affairs . . .

The Union public mind became excited, sectional feelings ran high, and the Union was in danger of being broken up through Northern aggression and Congressional usurpations at that early day. To quiet the storm, a son of Virginia came forward as peace-maker, and carried through Congress . . . “[the] Missouri Compromise.”

That posterity may fairly appreciate the extent of this exaction with the North, with the sacrifice made by the South to satisfy it, maintain the public faith and preserve the Union . . . [embraced] an area of 1,360,000 miles. The sacrifice thus made by the South, for the sake of the Union, will be more fully appreciated when we reflect that under the Constitution [the South] had as much right to go into the territories with their slaves, that men of the North had to carry with them there their apprentices and servants.

[After the War of 1812] . . . Southern statesmen took the lead in the passage of a tariff to encourage and protect [New England] manufacturing industries. [In time], the protection continued, and was so successful that . . . New England began to compete in foreign markets [and] the South said, “Enough, the North has free trade with us; the Atlantic ocean rolls between this country and Europe; the expense of freight and transportation across it, with moderate duties for revenue alone, ought to be protection enough for these Northern industries. Therefore, let us do away with tariffs for protection. They have not . . . turned a wheel in the South; moreover, they have proved a grievous burden for our people.

The example was to this effect: — The Northern farmer clips his hundred bales of wool, and the Southern farmer picks his hundred bales of cotton. So far they are equal, for the government affords to each equal protection in person and property. But the government . . . went further – protected this industry of one section and taxed that of the other. [To ship wool or cotton to the Charleston market] the Northern man is told that he may land his one hundred bales duty free; but the Southern man is required to leave forty of his in the custom house for the privilege of landing the remaining sixty.

It is in vain for the Southerner to protest or to urge, “You make us pay bounties to Northern fishermen under the plea that it is a nursery for seamen. Is not the fetching and carrying of Southern cotton across the sea in Southern ships as much a nursery for seamen as the catching of codfish in Yankee smacks? But instead of allowing us a bounty for this, you exact taxes and require protection of our Northern fellow-citizens at the expense of Southern industry and enterprise.”

(The Davis Memorial Volume; or Our Dead President, Jefferson Davis, and the World’s Tribute to His Memory, J. Wm. Jones, B.F. Johnson & Company, Publishers, 1890, excerpts, pp. 236-240)

Lee was not alone in seeing the masked reasons for the war prosecuted by the North and the opportunity seen in reducing the American South to a politically-weak economic colony. The bounty-enriched foreign mercenaries and displaced slaves used to fight its war of conquest were expendable tools for the task, and later employed to eradicate Indians.

Bernhard Thuersam, www.Circa1865.com

The Dollar Invades and Conquers

“Certainly he must have sensed that in the future “those people,” as he called his Northern adversaries, were determined to push aside “his people” with their aristocratic prerogatives and privileges. Despite his determination to stay out of politics both during and after the war, Lee could see the handwriting on the wall as plain as anyone, and plainer than most.

He understood that in addition to the sharp odor of gunpowder, there was the sweet smell of profits in the balmy spring air. Lincoln’s Secretary of the Treasury, visiting New York earlier that spring, had noted that many people there paid more attention to the stock market than to the casualty reports. To this a New York editor added: “Real or professed patriotism may be made to cover a multitude of sins. Gallantry in battle may be regarded as a substitute for all the duties of the Decalogue.”

In the Northern States, the rapid transformation from a conglomeration of farmers to a nation of industrialists had been hastened by the war. The exclusion of Southern planters from the halls of government made the change considerably easier. Astronomical profits on wartime speculation and gouging encouraged rapid expansion. While the brave boys in [blue] shed blood on the battlefields, the crafty made profits back home.

If the drama of collapse and surrender centered in the South, the drama of growth and expansion focused on the West. Hundreds of millions of dollars would go there; the receding frontier would be whittled down by systematic attacks of the Yankee investor. The Federal government would help by showering the railroads and settlers with land and services. Mines, cattle and farming would boom. Where bayonet had never been, the dollar would invade and conquer.”

(Lee After the War, Marshall W. Fishwick, Dodd, Mead & Company, 1963, pp. 39-40)

In the following study of Francis Lieber’s General Orders No. 100, which claimed to guide the US military in its war upon the South, was the author’s comment that “Perhaps the most significant element of Lieber’s treatise that betrays the lack of attention to US law comes down to this observation: there is no specific reference to the United States Constitution in General Orders No. 100.” Francis (Franz) Lieber was a German revolutionist who fled his home in 1827, settling in Boston. He lost a son in the War Between the States, who fought for the South.

Bernhard Thuersam, www.Circa1865.com

Opening the Door to Barbarism

“Two years into the conflict, after countless thousands of soldiers had died . . . the United States announced the rules by which it conducted the fighting. These regulations took the form of a document bearing the nondescript title of General Orders No. 100, instructions for the government of the armies of the United States in the field, which was compiled by a professor at Columbia College. Francis Lieber was a German émigré, a classical liberal forced by political persecution from his native country.

But there is a puzzling side to this document that has gone largely unnoticed by historians and legal scholars. Why was it allowed to be created and adopted?

One could argue that the process by which Lieber’s code of war came into being contradicted constitutional principles and the established practices of the United States. The Constitution states that the power to declare war and, even more pertinently, to “make rules for the government and regulation of the land and naval forces” belongs with the Congress.

When the nation created the Articles of War in 1806, it did so through congressional legislation, not executive fiat. With General Orders No. 100, the executive branch took a bolder step than many have realized, by assuming a right to determine the parameters of war making, especially the meaning of “military necessity,” without these policies originating with Congress.

As early as August 1861, he went on record in a public letter to Attorney General Bates concerning why the government could treat Confederates as belligerents without recognizing their nationhood. He had seized upon the rationale that became commonplace in the administration – and that owed itself to international precedents – that humanitarian reasons dictated exchanging prisoners and operating under the rules of war.

Reactions to [Lieber’s work] were predictable, with Republicans mostly supportive and administration opponents either ambivalent or hostile. The New York Herald . . . found some policy commendable . . . but stated flatly that “the inhabitants of the Southern States are not alien enemies, but citizens of the United States in insurrection, and consequently the alleged law of nations does not apply.”

Meanwhile, Confederate Secretary of War James Seddon and President Jefferson Davis found nothing to praise in the instructions, pointing out how the definition of “military necessity” opened the door to barbarism. Seddon said the order was “the handicraft of one much more familiar with the decrees of the imperial despotisms of the continent of Europe than with Magna Charta, the Petition of Rights, the Bill of Rights, the Declaration of Independence, and the Constitution of the United States.”

(With Malice Toward Some: Treason and Loyalty in the Civil War Era, William A. Blair, UNC Press, excerpts, pp. 93-96; 98)