Browsing "Northern Resistance to Lincoln"

Acts of Oppression Made in the Name of Liberty

From the Russian Embassy at Washington, diplomat Baron Edouard de Stoeckl monitored the Lincoln administration and reported his observations in detail to St. Petersburg. He concluded, as other observers did, that Lincoln’s apparent goal was to maintain the territorial union by force, with slavery intact and confined to the existing geographic limits of the South.

Bernhard Thuersam, www.Circa1865.com

 

Acts of Oppression Made in the Name of Liberty

“If the reign of the demagogues continues for a long time, General [John] Fremont is destined to play an important role. He is already the standard-bearer of the radical [Republican] party, and he will become the head of the party because of his superiority over the other leaders, among whom are only mediocre men and not a single leader of talent and energy.

Continuing his analysis of the “deplorable situation,” Stoeckl discussed in some detail the efforts of the radicals to gain control of affairs.

“General Fremont acted without authorization of [President Lincoln] and even contrary to his instructions, which forbid him to act in regard to the slave States of the west where Unionists are still fairly numerous. So the President was greatly astonished to learn about the [emancipation] proclamation of General Fremont. He regarded is as an act of insubordination.

For awhile there was consideration of dismissal [of Fremont], but after all [Lincoln] did nothing and did not even dare to reprimand him. The radicals, emboldened by this triumph, demand today that the edicts laid down by General Fremont in Missouri shall be applied everywhere. In other words, they demand that the government should convert the present struggle into a war of extermination.

What the radical party fears most is a reaction which would bring its ruin. So it takes advantage of the hold it has on the administration in order to drive it to extreme measures. The government has forbidden postmasters to carry newspapers in the mails which advocate conciliation and compromise. The result has been that the majority of newspapers which were opposed to war have had to suspend publication.

In several towns the extremists have gone even further. They have stirred up the populace, which has smashed the plants of the moderate newspapers. Conditions are such that mere denunciation by a general is sufficient for a person to be arrested and imprisoned. The act of habeas corpus and all the guarantees which the Americans have appeared to prize so much, have vanished and given way to martial law, which . . . is being enforced throughout the North.

We are not far from a reign of terror such as existed during the great French Revolution, and what makes the resemblance more striking is that all these acts of oppression are made in the name of liberty.”

Stoeckl wrote that the people of the North were being misled into believing that these drastic measures would hasten the peaceful restoration of the Union. But he did not believe the deception could persist:

“People will not be duped long by their political leaders. The reaction will necessarily take place. But unfortunately it will come too late to repair the harm that the demagogues have done to the country. It will be necessary finally to revolutionize the political and administrative institutions . . . which have been weakened upon the first rock against which the nation has been hurled.

In the North and in the South they will have to reconstruct the edifice which the founders of the Republic have had so much trouble in building . . . The present war is only the prelude of the political convulsions which this country will have to pass through.”

(Lincoln and the Radicals, Albert A. Woldman, World Publishing Company, 1952, excerpts, pp. 80-83)

New Yorker’s Resist Conscription

The resistance to Lincoln’s conscription law became violent on July 13, 1863 as mobs fought New York City police and soldiers in the streets. With that State having predominantly Democratic voters, Lincoln seemed to levy a higher draft quota there and poor Irish immigrants would bear the brunt of forced military service — and feared freed blacks flooding North and taking all laboring jobs held by Irish. The author below relates that “Negroes had been hunted down all day, as though they were so many wild beasts, and one, after dark, was caught, and after being severely beaten and hanged to a tree, left suspended there until [police took] the body down. Many [blacks] had sought refuge in police stations and elsewhere, and all were filled with terror.”

Bernhard Thuersam, www.Circa1865.com

 

New Yorker’s Resist Conscription

“The ostensible cause of the riots of 1863 was hostility to the draft, because it was a tyrannical, despotic and unjust measure – an act which has distinguished tyrants the world over, and should never be tolerated by a free people. Open hostility to oppression was more than once hinted in a portion of the press – as not only a right, but a duty.

Even the London Times said: “It would have been strange, indeed, if the American people had submitted to a measure which is a distinctive mark of the most despotic governments of the Continent.”

It might as well be said, that because settling national difficulties by an appeal to arms has always been a distinctive feature of despotic governments, therefore the American people should refuse to sustain the government by declaring or prosecuting any war; or that because it has always been a distinctive feature of despotic governments to have naval and military schools, to train men to the art of war, therefore the American people should not submit to either.

[If troops] enough can be raised on a reasonable bounty, it is more expedient to do so; but the moment the bounty becomes so exorbitant as to tempt the cupidity of those in whom neither patriotism nor sense of duty have any power, volunteering becomes an evil. We found it so in our recent war.

The bounty was a little fortune to a certain class, the benefit of which they had no idea of losing by being shot, and hence they deserted or shammed sickness, so that scarce half the men ever got to the front, while those who did being influenced by no higher motive than cupidity, became worthless soldiers.

If a well-known name, [or] that of a man of wealth, was among the number [conscripted], it only increased the exasperation, for the law exempted every one drawn who would pay three hundred dollars towards a substitute. This was taking practically the whole number of soldiers called for out of the laboring classes.

A great proportion of these being Irish, it naturally became an Irish question, and eventually an Irish riot. It was in their eyes the game of hated England over again – oppression of Irishmen.”

(The Great Riots of New York, 1712 to 1873; Joel Tyler Headley, editor, Dover Publications, 1971, excerpts, pp. 137; 139; 149. Original published by E.B. Treat in 1873)

A Fearful Danger and Political Menace

The electoral college system erected by the Founders worked best when limited to two candidates, but became what was described as a “fearful danger” when multiple candidates emerged in 1860. New Yorker Samuel Tilden’s dark prophesy of a purely sectional candidate becoming president was realized in 1860; when the Gulf States began to go out of the Union he stated that “The situation was unprecedented, and it is worse than idle, it is presumptuous, to rail at [President James] Buchanan for his failure to act.” The latter is scapegoated for failure, though the Founder’s failed to foresee such a calamity.

Bernhard Thuersam, www.Circa1865.com

 

Fearful Danger and Political Menace in 1860

“The election of Abraham Lincoln has been studied from every angle. It is well to disregard the providential aspect of the outcome. Seventeen years ago, Mary Scrugham made a careful examination of the returns. Her “Peaceable Americans of 1860-1861” shows how ridiculously the machinery of the electoral college misrepresented American opinion in this critical campaign.

To question the constitutionality of Lincoln’s election is absurd, but to criticize the system by which one of four candidates could carry the electoral college decisively with a large third of the popular vote is pertinent.

At the first two meetings of the electoral college, Washington was chosen without contest. Thereafter, as everyone knows, the growth of parties put an end to the deliberative character of the body, for each political organization put up its own list of electors in every State – where the legislatures did not choose them. Reporting the popular result became automatic.

Polling not a vote in almost one-third of the States, obtaining not a single elector from the South, and receiving a noticeable minority of the popular suffrage, a sectional candidate was chosen President of the United States – and all this according to the Constitution. What may happen in the future can only be imagined – should this dangerous system survive.

Miss Scrugham’s analysis of the election of 1860 should open our eyes. Lincoln had no votes in ten States of the Union; while [Vice President John] Breckinridge received more that 6,000 in Maine, 2,000 in Vermont, and 14,000 in Connecticut.   According to the “acid test of geographical membership,” the Republican was the only “out and out sectional party.”

Some accused the Southern Democrats of splitting their party for the sake of forcing the election of Lincoln and thus finding a compelling excuse for secession.

If the entire opposition to Lincoln, however, had been united on one candidate, the electoral college would still have given him the presidency “regardless of the fact that popular vote against him was a million more than that for him.”

In 1860, then, according to the returns, it would have been impossible for a majority of the American people to choose a president even if they had been united on a single hypothetical candidate.

In the face of the vote which both [Stephen] Douglas and [John] Bell received in the Southern States, “it is folly to assert,” continues Miss Scrugham, that the South was “aggressively pro-slavery and bent on maintaining slavery” even at the cost of the Union.”

[New York Governor Samuel] Tilden saw the fearful danger of the victory of Lincoln before it had occurred. Laying his finger on the political menace of any man’s being made President without one electoral vote from the South, he urged his fellow citizens to defeat [Lincoln] by any means possible.”

(Horatio Seymour of New York, Stewart Mitchell, Harvard University Press, 1938, excerpts, pp. 219-220)

War to Enhance the Power of Lesser Regions

Copperheads, or Peace Democrats, were not Southern secession sympathizers but those who saw peaceful solutions in compromises worked out in a Constitutional convention of the States, which would end the bloody war between Americans. Northern leaders like the eloquent and rational Horatio Seymour of New York were regarded with suspicion by Lincoln and his supporters, and nothing more than an ambitious schemer for power. They awaited an opportunity to put Seymour at a disadvantage, and then seek ways to remove him from office.

Bernhard Thuersam, www.Circa1865.com

 

War to Enhance the Power of Lesser Regions

“The Democratic upsurge in the elections of 1862, the widespread suspicion of the federal government’s growing power, the deep popular objection to the abolitionists and the Emancipation Proclamation were all embodied in Horatio Seymour, newly elected Governor of New York. As chief executive of the Union’s most populous State, Seymour was in a position to assume the leadership of the States’ rights forces – a leadership that might take him into the White House. Seymour brought an integrity that was incorruptible and a scholarly intelligence beyond the wont of politicians. Neither quality, however – even when backed by the mounting discontent and growing war-weariness – could prevail against the power and propaganda of the national government. Abraham Lincoln beheld the rise of Horatio Seymour with well-place apprehension.

The governor’s inaugural address began by calling attention to his oath to support the constitutions of both the United States and New York . . . [and that] the rights of the States must be sacred. A consolidated government, declared the governor, would destroy “the essential home-rights and liberties of the people.”

With a realism strange to the political oratory of war, Seymour placed the unionism of the central and Western States on economic grounds; the West needed the Southern markets. But there were constitutional implications as well in the situation. Division of the country would produce a centralization of power. The small States, explained Seymour – and by small States he meant New England – were more willing than the larger ones to centralize power, because they had a disproportionate power in the national government.

The division of the Union, or the disenfranchisement of the Southern States – making them territories – would enhance the power of the lesser regions. And in turn, this concentration of political power would place the national economy in leading-strings to the limited economic pursuits of New England. The national debt would be owned on the Atlantic seaboard and would divide the country into the “perilous sectional relations of debtor and creditor regions.” Then, the Governor continued, the advantages of the protective tariff, growing out of this debt, would accrue to the same creditor States that enjoyed the excessive political power.

The only way to prevent these developments was the restoration of the Union – complete in all its parts. The vigor of the war would be increased when the national effort was concentrated on restoring the Union, and not upon a “bloody, barbarous, revolutionary, and unconstitutional scheme” that gratified hatred, party ambition, and sectional advantage!

Interspersed through this economic and political dissertation, and illustrating his exposition, were Seymour’s comments on the unconstitutionality of the Emancipation Proclamation, arbitrary arrests, and conscription.

Promptly the address became a sensation . . . [though] William Cullen Bryant of the Post ruminated that while Seymour spoke much truth on arbitrary arrests, yet these methods had saved Maryland, Kentucky, and Missouri for the Union. But Horace Greeley, eschewing any thought of rationality, denounced the address as “dexterous dishonesty” concocted of cowardice, drunkenness, and masked disloyalty by a demagogue.”

(Lincoln and the War Governors, William B. Hesseltine, Alfred A. Knopf, 1955, excerpts, pp. 281-284)

 

The South Seeks a Convention of the States

Contrary to mainstream belief, Lincoln and his Republican Party demonstrated no interest in preserving the Union and regularly spurned peace initiatives. Those who wanted to resort to the United States Constitution for a solution to the intense sectionalism in both North and South, saw a convention of the States as the method provided by the Founders. As in the peace overture noted below, all efforts to end the bloodshed of Lincoln’s war originated in the South, and all ended in failure due to Lincoln’s intransigence.

Bernhard Thuersam, www.Circa1865.com

 

The South Seeks a Convention of the States

“As early as February, 1863, it was rumored that [South Carolina Representative William W. Boyce] had been advocating in secret session of the [Confederate] House [of Representatives] some form of conciliation with the Northwestern States.

When the Democratic convention, meeting at Chicago August 29, 1864, adopted a platform declaring that efforts should be made immediately for a cessation of hostilities and that a convention of the States be employed to restore peace “on the basis of the Federal union of the States,” Boyce addressed an open letter to President [Jefferson] Davis urging him to declare his willingness for an armistice and such a convention that Northwestern Democrats proposed.

In his letter of September 29 Boyce argued that a republic at war inevitably drifted into despotism . . . [through] conscription, illegally laid direct taxes, [issuing] vast quantities of paper money . . . suspended the writ of habeas corpus . . . in short, [giving] the President all the powers of a military dictator.

Nor would the evils necessarily end with the war; that would depend on the nature of the peace. “A peace without reconciliation carried in its bosom the seed of new wars.”   A peace without harmony would be a mere armed truce. Such a peace would cause the North to develop a great military power and the South would be forced to do likewise. There would then be two opposing military despotisms under which republican institutions would permanently perish.

To prevent such an outcome a peace of harmony must be negotiated with the United States. In bringing this to pass a successful military policy was essential but it was not enough; it must be accompanied by a political policy, a political policy which could not succeed if Lincoln, representing the fanaticism of the North, were returned to the White House.

The South’s only hope for a satisfactory peace, therefore, lay in the victory [in November 1864] of the Northern Democratic Party which should be encouraged in every possible way. [Boyce’s advice was to] . . . Assure [Northern Democrats] of the South’s willingness to cooperate in a convention of the States, and let South cooperate even if an amendment of the Constitution be necessary for that purpose. Such a convention would be the “highest acknowledgment” of State rights principles.”

(South Carolina Goes to War, Charles Edward Cauthen, University of South Carolina Press, 1950, 1860-1865, excerpts, pp. 217-218)

 

Let the South Withdraw

New York Governor Horatio Seymour noted that “very few [Northern] merchants had been backward about importing [slaves] and selling them South” — and that “Slavery, in fact, was upheld by the great business firm of “Weaver, Wearer and Planter” — only one of the three partners of which resided in the South — but for the looms of New England and Old England [slavery] could not live a day.”  Seymour was also aware that passage of the Crittenden compromise would have forestalled the secession movement in the South, but the Republican party was determined to defeat it. Historian James Ford Rhodes later wrote that ‘it seems to me likewise clear that, of all the influences tending to this result [the compromise defeat], the influence of Lincoln was the most potent.”

Bernhard Thuersam, www.Circa1865.com

 

Let the South Withdraw

“It was [Seymour’s] belief, he declared, that if people asked themselves why the United States had split asunder in civil war, they had only to read Washington’s Farewell Address for their answer and find out how completely they had neglected the warning of their first President.

Men who were loyal to nothing less than the whole Union both North and South would have to fight the spirit of both North and South alike, for people who made their prejudices and passions “higher” laws than the laws of the land were by no means confined to the eleven States which had arrogated to themselves the dangerous right to secede.

A majority of the American people, he reminded his hearers, had not preferred Lincoln for President, and a large part of the voters had deplored his election as a calamity, but Lincoln had been chosen constitutionally and deserved a “just and generous support” – as long as he kept himself within the limits of that very Constitution by which he was entitled to his office.

What would it profit the North to conquer the South if it destroyed the compact of government in the process? Alexander Stephens, though he disapproved of secession, had followed his Georgia out of the Union; Seymour, though he disapproved of abolition and did not vote for Lincoln, stayed in the Union with New York.

Yet the war was a fact, and because the decision of it would depend on might, the men of the North would be most unwise to call the victory they fought for “right.” “We are to triumph,” Seymour warned his hearers, “only by virtue of superior numbers, of greater resources, and a juster cause.” The arrangement of his words is significant.

Slavery, he insisted, was not the cause of the Civil War, for slavery had always existed in the land; it was present when the Union was formed, and the people had prospered before it became a matter of dispute. Causes and subjects were frequently distinct: the main cause of the war was the agitation and arguments over slavery. [Seymour stated] “If it is true that slavery must be abolished to save this Union then the people of the South should be allowed to withdraw themselves from that government which cannot give them the protection guaranteed by its terms.” [It was Seymour’s belief that] To grant immediate freedom to four million uneducated Africans would disorganize, even if it did not destroy, the Southern States.”

(Horatio Seymour of New York, Stewart Mitchell, Harvard University Press, 1938, pp. 238-239)

Power, Plunder and Extended Rule

Lincoln’s continued military defeats caused Radical Republicans to oppose his reelection, until Gen. George B. McClellan became the Democratic presidential nominee in 1864. As Charles Sumner put it privately, “Lincoln’s reelection would be a disaster, but McClellan’s damnation.” After winning their war against the South, Republicans extended their rule over the new empire beyond the turn of the century, except for the two terms of Democrat Grover Cleveland. For further reading on Lincoln’s opponents within his party see: Ward Hill Lamon’s “Recollections of Abraham Lincoln, 1847-1865,” published in 1895.

Bernhard Thuersam, www.Circa1865.com

 

Power, Plunder and Extended Rule

“Surgeon [Francis Marion] Robertson equates the Union logic of war with that which was being espoused by a set of Union opponents of President Abraham Lincoln’s conduct of the war.

Following the long series of Federal military disasters leading up to and including their defeats in the battles of Fredericksburg and Chancellorsville in 1863, there arose a movement within the Army and Federal Congress that reached a fever pitch in its call to displace President Lincoln, in effect, by the appointment of a dictator to direct the war effort.

Members of Congress called for appointing a vigilant “committee on the conduct of the war” to watch and supervise Lincoln’s movements and decisions. Supporters of this cabal included (a), political activists who sought increased military victories and preservation of their personal and party power, (b), commercial zealots who desired spoliation and plunder of the South, and (c), religious abolitionists whose sympathy for the slave had degenerated into envenomed hostility toward his owner.

These aggressive enemies of Lincoln in the North and within his own party summed up the logic of war in the comprehensive formula, “Power, plunder and extended rule.”

This phrase summarized the vindictive motivation that the seceding Southerners both expected and feared from the Union, if they should lose the war. The collection of attitudes has later been described by historians as the Radical Republican philosophies.

So Lincoln, faced with fire in both his front and rear, finally concluded that he must assert himself. Lincoln exclaimed, “This state of things shall continue no longer. I will show them at the other end of the Avenue whether I am President or not!” From soon after this moment, “his opponents and would-be masters were now, for the most part, silenced; but they hated him all the more cordially.”

In the end, after the Southern surrender and Lincoln’s assassination, the worst apprehensions of white Southerners about “power, plunder and extended rule” at the hands of the Republican North and the carpetbaggers would largely come true.”

(Resisting Sherman, A Confederate Surgeon’s Journal and the Civil War in the Carolinas, 1865, Thomas Heard Robertson, Jr., editor, Savas-Beatie, 2015, pg. 64)

Jan 25, 2017 - America Transformed, Lincoln Revealed, Myth of Saving the Union, Northern Resistance to Lincoln, Republican Party Jacobins    Comments Off on McClellan’s Men to March on Washington

McClellan’s Men to March on Washington

Only five years after fielding its first presidential candidate, the purely-sectional Republican Party of Lincoln had driven South Carolina and other Southern States from the Union. The following year Lincoln’s army was in near-revolt — below, after Lincoln removed McClellan from command due to Radical Republican pressure, the soldiers in blue were ready to march on Washington.

Bernhard Thuersam, www.circa1865.com

 

McClellan’s Men to March on Washington

“On November 10 [1862], a part of the Army of the Potomac was drawn up in long lines of review along the Warrenton-Alexandria road. The parting scene made a lasting impression on many men in blue. An officer . . . wrote home one of the best accounts of the dramatic moment, mentioning the distinct threat of an uprising by the army against the government:

“As General McClellan passed along its front, whole regiments broke and flocked around him, and with tears and entreaties besought him not to leave them, but to say the word and they would settle matters in Washington.

Indeed, it was thought at one time there would be a mutiny, but by a word he calmed the tumult and ordered the men back to their colors and their duty. [A General], who was riding near McClellan, [said] to another mounted officer close by that he wished to God McClellan would put himself at the head of the army and throw the infernal scoundrels at Washington into the Potomac. What do you think of such a man? He had it in his power to be a dictator – anything he chose to name – if he would but say the word . . .”

This little-known account gives an indication of the very real danger of a military revolt against the government in Washington. The army was beside itself with anger at the administration. A few days after [Sharpsburg], at McClellan’s headquarters, during a council of war of the top generals, no less prominent a civilian than John W. Garrett, President of the Baltimore and Ohio Railroad, had suggested using the Army of the Potomac to coerce the administration by force into adopting whatever policies the generals desired.

McClellan himself describes the threatening situation in a moderate way: “The order depriving me of command created an immense deal of deep feeling in the army – so much so that many were in favor of my refusing to obey the order, and of marching upon Washington to take possession of the government.”

(General George B. McClellan, Shield of the Union, LSU Press, 1957, excerpts, pp. 327-329)

Delaware the Southern State

In July 1861, Senator James A. Bayard of Delaware spoke in the United States Senate and compared “the language of Lincoln and the Republicans to statements by the British Crown and Parliament during the American Revolution.” He saw it as irrational that after a devastating war between the sections, there would remain no bond to cement the people to one another, and that war would ruin both North and South.

Bernhard Thuersam, www.Circa1865.com

 

Delaware the Southern State

“In 1861, an optimistic Confederate Secretary of State Robert Toombs stated “all fifteen States of the South will have severed the bonds which have bound them to the late Federal Union and will have joined the Confederate States.” This statement is remarkable for two reasons.

First, Toombs expected, as did many Southerners, that every slave State would bond itself to the new southern Confederacy. Second, Delaware was included in Toombs’ fifteen States of the South. Most Southerners do not view Delaware in this light, but based on historical evidence, Delaware was actually more Southern than middle, and positively more Southern than Northern. Delaware, then, is the perfect case study for what Abraham Lincoln called “the fire in the rear.”

She had a large pro-Southern population, a congressional delegation that favored at minimum peaceful separation if not secession, a State government that was split between pro-war Republicans and pro-South Democrats, and Delaware was occupied by the Union army several times during the war. It would be no stretch to say that if not for military occupation and the inability of Delaware to secede, Delaware may have endeavored to cast its lot with the South.

Both United States Senators from Delaware in 1860 – James A. Bayard the younger and Willard Saulsbury, Sr., were Democrats . . . Delawareans had long supported Southern rights in the United States Congress, but by 1860, the State’s geographic position exposed its property and material well-being to the abuses of the federal government, thus forcing its citizens to adopt a more cautious approach to the sectional conflict.

[In the 1860 presidential election, those] candidates who were diametrically opposed to Lincoln received over seventy-six percent of the total popular vote . . . [and] Democrats retained a five to four majority in the State Senate . . .

In March [1861], the [Delaware] Gazette unleashed its harshest condemnation of the federal government with a stinging editorial supporting State’s rights. The paper thought the impending crisis would settle the issue of location of sovereignty in the republic. “If a government has a right to subjugate a State then freedom must mourn until other countries and other peoples establish what we had hoped had been done by Washington and Jefferson and their compeers.”

On 19 July 1861, Bayard rose in the Senate to deliver a two-hour speech entitled “Executive Usurpation” in response to a joint resolution of Congress . . . to “approve and confirm certain act of the President of the United States for suppressing insurrection and rebellion,” most notably the suspension of the writ of habeas corpus, the raising of troops, and the blockade of Southern ports.

[Bayard stated] “I am attached to the Union as any man who claims a set in this body . . .” But the course of the administration and the Republican Party, Bayard asserted, “was the reduction of the States to “provinces, and the military power to become the dominant power in the representative Republic . . . for the purpose of conquest and subjugation.”

(The Avenger Without Mercy: Delaware Under the Federal Heel; Brion McClanahan; Northern Opposition to Mr. Lincoln’s War, D. Jonathan White, editor, Abbeville Institute Press, 2014, excerpts, pp. 116; 120; 127; 136-137)

No Dissent in Lincolnian America

Lincoln erroneously saw Unionist Clement Vallandigham as aiding the Confederacy when the former Ohio congressman was actually aiding the Union and preserving the integrity of the United States Constitution in his dissent on Lincoln’s unconstitutional acts. Joseph Holt, Lincoln’s Judge Advocate General, was a Kentuckian and Secretary of War during James Buchanan’s administration and warm to the Radical Republicans taking power. It was he who authorized the ill-fated Star of the West expedition to resupply Fort Sumter in early January, 1861, as well as later prosecuting former Ohio Congressman Vallandigham for alleged treason for his dissent.  The latter is called a “Copperhead,” which was not a Southern supporter, but a Unionist who opposed Lincoln’s draconian methods.

Bernhard Thuersam, www.Circa1865.com

 

No Dissent in Lincolnian America

“In early 1863, a military commission prosecuted and convicted Clement Vallandigham, a former congressman, of treason. There is a consensus that this trial ranks among the most important in American history. The twentieth century’s leading scholars of the nation’s legal history, Lawrence Friedman, Kermit Hall and Melvin Urofsky, have all articulated that the Vallandigham trial and eventual Supreme Court determination in the case, is a rare landmark.

But in none of the treatise’s does Holt’s role as Vallandigham’s “prosecutor,” or the participating judge advocates emerge. Indeed, as recently as 2008, a well-researched study on Lincoln’s relationship to the Supreme Court only briefly notes Holt’s role in the entire process.

Melvin Urofsky summed up the Judge Advocate General’s role as, “simply informing the [Supreme Court] that it could inhibit neither Congress nor the President in prosecuting the War.” This is an oversimplification and the importance of Holt’s participation in Vallandigham’s trial is more than symbolic.

Holt, an officer in the War Department argued the case to Supreme Court, rather than the attorney general. This reflected how militarized the law had become and how politicized the Judge Advocate General’s Department was becoming.

[Gen. Burnside’s General Order 38 regarding treason contained] controversial prohibitions aimed at stifling dissent to the war. Most problematic was a section which stated: “The habit of declaring sympathies for the enemy will not be allowed in this department. Persons committing such offenses will be at once arrested, with the view toward being tried as above stated, or sent beyond our lines into the lines of their friends.”

This part of the order conflicted with the Bill of Rights’ recognition of freedom of speech as an inalienable right. [Burnside] intended to ferret out the leaders of subversive organizations [as there were] already acts of public discontent within the Ohio Department . . .

[Burnside’s judge advocate aide Major James Cutts included] allegations [that] Vallandigham referred to the war as “wicked, cruel and unnecessary,” and that the war was “fought for the freedom of the blacks and enslavement of the whites.” [Vallandigham] had publicly accused the [Lincoln] administration of negotiating with the South in bad faith . . . [and] that Lincoln planned to “appoint military marshals in every district and restrain the people of their liberties, to deprive them of their rights and privileges.”

On his own, Lincoln arrived at a novel solution. If, he reasoned, Vallandigham aided the Confederacy, he should be expelled from the Union and reside with them. Holt approved of this course of action.”

(Law in War, War as Law: Brigadier General Joseph Holt and the Judge Advocate General’s Department in the Civil War and Early Reconstruction, 1861-1865, Joshua E. Kastenberg, Carolina Academic Press, 2011, excerpts, pp. 103-106; 110)

 

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