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)

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)

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

American Citizens Targeted

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

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

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

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

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

Party Above Union

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

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

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

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

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

Vallandigham (below) had the support of many in the north’s Democratic party such as editor Thomas Beer of Ohio’s Crawford County Forum of 30 January 1863. He wrote: “every dollar spent for the prosecution of this infamous war is uselessly wasted – and every life lost in it is an abominable sacrifice, a murder, the responsibility of which will rest upon Abraham Lincoln and his advisors. Support of this war and hostility to it, show the dividing line between the enemies and friends of the Union. He who supports the war is against the Union.”

Washington the Arch-Rebel

“Ohio Congressman Clement Vallandigham excoriated Lincoln and his followers on January 14, 1863, in the US House of Representatives by stating: “Yet after nearly two years of more vigorous prosecution of war than ever recorded in history . . . you have utterly, signally, disastrously failed to subjugate ten millions of “rebels”, whom you had taught the people of the North and . . . West not only to hate, but to despise.

Rebels did I say?  Yes, your fathers were rebels, or your grandfathers.  He [Washington] who now before me on canvas looks down so sadly upon us, the false, degenerate and imbecile guardians of the great Republic which he founded, was a rebel.  And yet we, cradled ourselves in rebellion and who have fostered and fraternized with every insurrection in the nineteenth century everywhere throughout the globe, would now . . . make the word “rebel” a reproach.”

(The Limits of Dissent: Clement L. Vallandigham & the Civil War. Frank L. Klement. Fordham University Press, 1998, pg 136)

Prodded by Lincoln to be on the offensive in early September 1862, the north’s early savior Gen. George McClellan began his pursuit of Gen. Robert E. Lee’s army into Maryland. Though his army was numerically inferior, Lee audaciously scattered his forces into strong positions, invited costly enemy assaults and then concentrated all for his opponent to fruitlessly assault. McClellan declined the bait and to Lincoln’s chagrin, retreated. After the carnage and burials, Lincoln demanded yet more troops to continue the invasion.

The Slaughter of Lincoln’s War

“Except for a belch of musketry here and there, the roar of battle at Sharpsburg subsided all along the lines as day turned to dusk. When men’s ears stopped ringing, they began to perceive the agonized groans of the wounded, piercing and plaintive nearer by but rolling like the rumble of distant thunder over the rest of the battlefield. Nearly four thousand Americans had died that day, and close to twenty thousand had been wounded – some of them horribly and many fatally – but the road still lay open to Lee’s Army of Northern Virginia.

“We do not boast a victory,” wrote one of Lee’s personal staff two days after the return to Virginia; “it was not sufficiently decisive for that. The Yankees would have claimed a glorious victory had they been on our side & they no doubt claim it anyhow.”

Certainly, McClellan counted it a “complete” victory for he had rid Maryland of the invader and had hurt him more than a little in the process. What he had not done, as Abraham Lincoln observed with great disappointment, was to prevent Lee’s escape and compel his surrender.

A short truce on the day after the battle allowed for the retrieval of some of the wounded and burial of a few of the dead. The work demonstrated how abrupt a transformation overcame good men who had become heartless killers in the tumult of battle. A young northern lieutenant from western Virginia suddenly recoiled at the bloodshed between men who spoke the same dialect. “The thought struck me,” he wrote his family, “this is unnatural.” Seeking respite from the slaughter, the lieutenant tried to resign soon after the battle.

The sheer devastation of Sharpsburg contributed substantially to a new epidemic of resignations from the northern army. The colonel of the 107^th New York promptly departed in the wake of their brutal initiation, while one of their freshly-commissioned captains – whose company was criticized for faltering under fire – spend the next five weeks conniving for a safe home-front assignment as a drillmaster or clerk. A New Hampshire sergeant who had made the charge against Burnside’s Bridge damned Republicans up and down as he toured the battlefield; he supposed that if they could see such carnage, even they might change their minds and demand a settlement “in the name of God.”

Southern prisoners elicited abundant comment, particularly among recruits who had never seen their enemies at a speaking distance. “They are naturally more lithe & active that we”; and much more serious in defense of their homeland than the northern soldiers who had enlisted to stifle the South’s desire for political independence. “There is,” he added,” “a look of savageness in their eyes not observable in the good-natured countenance of our men.”

A romantic, reflective sergeant who had left his New Hampshire home less than a month before watched a mass burial of his fellow soldiers that Friday. He supposed that decay alone would dissuade most families from retrieving their loved ones’ remains, and reflected that no mothers, sisters, daughters, or wives would ever weep over these men folks’ graves at twilight or cast flowers on them as anniversaries passed. Only “the sighing wind shall be their funeral dirge.”

(Lincoln’s Darkest Year: The War in 1862. William Marvel. Houghton-Mifflin, 2008, pp. 217-226)

Southern Unionists

“One Southern conservative on the eve of war was a teacher of physics at a military institute. Observing the actions and words of the people in the North, he said:

‘It is painful to discover with what unconcern they speak of war and threaten it. They do not seem to know what its horrors are. I have had the opportunity of knowing enough on the subject to make me fear war as the sum of all evils.’

Looking around him at his own duties, he said – this was on February 2, 1861, after the first seven States had declared independence: ‘I am much gratified to see a strong Union feeling in my portion of Virginia . . . For my own part I plan to vote for the Union candidates for the [State] convention and I desire to see every honorable means used for peace, and I believe that Providence will bless such means with the fruits of peace.’

That was Thomas Jonathan Jackson.

Another was a United States cavalry colonel at the time. After the first six States had declared independence, he wrote his son on January 29, 1861:

‘I can anticipate no greater calamity for the country than a dissolution of the Union. I am willing to sacrifice everything but honor for its preservation. I hope that all Constitutional means will be exhausted before there is a resort to force. Still, a Union that can only be maintained by swords and bayonets, in which strife and civil war are to take the place of brotherly love & kindness, has no charm for me . . . If the Union is dissolved & the government disrupted, I shall return to my native State & share the miseries of my people & save in her defense, will draw my sword on none.’

That was Robert E. Lee.”

(Lenoir Chambers, The South on the Eve of the Civil War. North Carolina Historical Review, Vol. XXXIX, No. 2., Spring 1962, pp. 193-194)

“The South in 1860 knew only that the party which was hotly intolerant of the whole body of Southern institutions and interests had triumphed in the elections and was about to take possession of the government, and that it was morally impossible to preserve the Union any longer.

“If you who represent the stronger portion,” Senator John C. Calhoun stated in 1850, in words which perfectly convey this feeling in their quiet cadences, cannot agree to settle the great questions at issue on the broad principle of justice and duty, say so; and let the States we both represent agree to separate and depart in peace.”  (Division and Reunion, 1829-1909. Woodrow Wilson. Longmans, Green and Co., 1912; pp. 209-210)

Let the South Depart in Peace

Frederick Grimke’ (1791-1863) wrote about the meaning of American constitutional democracy in his “Nature and Tendency of Free Institutions” of 1848. His work was hailed as a fitting companion to Tocqueville’s Democracy in America as both works at the time were deep philosophical studies of this country’s democratic civilization.

Born in Charleston, South Carolina, Grimke’ was a Southern aristocrat, well-acquainted with American history and possessed a lifetime’s intimate experience with American legal and political institutions.  He parted with what he saw as Tocqueville’s grand mistake “of identifying equality of condition,” instead holding that the American system contained the promise of equality of opportunity.

On the subject of African bondage, he opposed immediate and uncompensated abolition and found himself frequently at odds with sisters Sarah and Angelina, the latter married to the intense Connecticut abolitionist Theodore Weld. Grimke’s first-hand experience with free black communities around Cincinnati convinced him of their not yet being ready to assume the responsibilities of American self-government.

As the sectional gulf between North and South widened, Grimke’ held that States could not nullify federal laws within the Union but were at full liberty to withdraw from that union and form another. He viewed this as akin to a person who had decided to migrate to another country.

He wrote that “no enlightened person who values freedom would contest the right of an individual to emigration; and likewise, none should threaten or compel a State bent on seceding to remain” in a political union it wished to leave.

Grimke’ understood this policy of peaceful departure from the 1789 Union by a group of States to be a lesser evil than war. Grimke’ also believed – as did Jefferson – that a number of regional American confederations might later be created; and while they would have distinct political governments, they would continue to belong, if not to the original union, but to the American democratic civilization which he so greatly prized.”

(The Nature and Tendency of Free Institutions, Frederick Grimke, John Williams Ward, editor. Harvard University Press, 1968. Review essay by Adrienne Kohn, South Carolina Historical Magazine, Vol. 71, 1970.)

President-elect Lincoln instructed his party stalwarts to either avoid what would become the Washington Peace Conference chaired by former-President John Tyler, or if in attendance to refuse any peaceful compromise as it would dissolve Republican party unity.

The Conspiracy Which Brought on War

“On February 2, 1861, Hon. Stephen A. Douglas in a letter published in the Memphis Appeal, wrote of the Republican leaders as follows:

‘They are bold, determined men. They are striving to break up the Union under the pretense of serving it. They are struggling to overthrow the Constitution while professing undying attachment to it and a willingness to make any sacrifice to maintain it They are trying to plunge the country into a cruel war as the surest means of destroying the Union upon the plea of enforcing the laws and protecting public property.’

Shortly after Douglas wrote this letter Senator Zachariah Chandler of Michigan wrote a letter to Gov. Austin Blair which proves the guilty conspiracy of the men determined on war. Virginia had solicited a conference of States to see if some plan could not be devised and agreed upon to prevent war and save the Union.

Chandler wrote Blair that he opposed the conference and that no Republican State should send a delegate. He implored the Governor to send stiff-necked delegates or none and added these sinister words: ‘Some of the manufacturing States think that a war would be awful; without a little blood-letting this Union will not be worth a curse.”

(The Conspiracy Which Brought on War, S.A. Cunningham, Confederate Veteran, Vol. XXIV, No. 10, October 1916, pg. 436)