Circa1865

Acclaimed historian Dr. Clyde Wilson has written that the Republican party was solely responsible for carrying out the bloodiest war in American history against the American South, to destroy self-government. In South Carolina, a Republican-rigged postwar convention erected a corrupt political regime kept in power by Northern bayonets, carpetbaggers and freedmen.

Bernhard Thuersam, www.circa1865.org

Republicans Instilling Lessons of Hatred and Hostility

“When the war came to an end, and the Southern States lay prostrate at the feet of their conqueror, they experienced the bitterest consequences of the humiliation of defeat. There were no revengeful prosecutions (a few judicial murders in the flush of the victory excepted). The Congress devoted itself to the work of reconstruction . . . on the principle of equal rights to all men . . . there seemed to be no reason why the States should not proceed harmoniously in the career of peaceful progress.

But there was an element in the population which rendered such a principle fatal to all peaceful progress. In many of the States, and in South Carolina particularly, a majority of the people had been slaves. All these were suddenly elevated to the rank of citizens. Were this all, even then there might have been hope.

The slaves had always lived well with their masters, bore no resentment for past injuries, and if they were let alone in their own mutual relations, the two races might, and doubtless would have harmonized and soon discovered the art of living together in peace. But this was not to be.

With the progress of Northern arms grew up an institution founded ostensibly, perhaps really, for the protection of the rights of the newly emancipated slaves. This institution, known as the Freedmen’s Bureau, became for the time the ruling power in the State. It interfered in all the concerns of whites and blacks, its officers were generally men who not only had no love for the South, but who made it their mission to foster in the minds of the blacks a bitter hatred and mistrust of the whites.

They were, on all occasions, the champions of the Negroes rights, and never failed to instruct them that it was to the Republicans that they were indebted for all the rights which they enjoyed. In the train of the Bureau came the schoolmistresses who instilled into the minds of their pupils the same lessons of hatred and hostility.

The consequence was, that though the personal relations between the races were friendly, though the blacks invariably addressed themselves to the whites as to true friends for all offices of love and kindness, of which they stood in need, they would never listen to them, if the latter wished to talk about politics.

This feeling was intensified by the introduction of the Union League, a secret society, the members of which were solemnly bound never to vote for any but a Republican. By such means, the Negro presented a solid phalanx of Radicalism . . . a new business arose and prospered in Columbia, a sort of political brokerage by which men contracted with speculators to buy the votes of members when they were interested in the passage of any measure. Here was a corruptible Legislature under the influence of men utterly corrupt.

In South Carolina . . . Society was divided into the conquered whites, who were destined to satisfy the voracious appetites of the carpetbagger, and the needy and ignorant Negro, directed by his hungry teachers. The whites had no rights which they were bound to respect; if they paid the enormous taxes which were levied upon him, the Negro was satisfied; he had done all that it was necessary for him to do in the degenerate State.”

(Last Chapter of Reconstruction in South Carolina, Professor F.A. Porcher, Southern Historical Society Papers, Volume XIII, pp. 76-79)

Seldom mentioned as a direct cause of the War Between the States is the Republican party refusal to compromise with Southerners in Congress in order to save the Union. As president-elect, Lincoln is said have led the resistance to compromise and pushing the South toward secession. After its first national electoral contest in 1856, the Republican party in 1861 would destroy the Founders’ Constitution and the union of fraternal States it had created.

Bernhard Thuersam, www.circa1865.org

Republican Block Schemes of Conciliation

“Congress was in session beginning December 3 [1860]; and in a bungling, legalistic fashion it was going about the business of saving the country. Incidentally, this should be borne in mind as a sidelight of Buchanan’s policy. With Congress seeking modes of adjustment, the President would have been going counter to the national legislature if he had taken warlike measures against the South.

Panaceas and compromise solutions piled up in such quantity that each house chose its committees to centralize the discussion, sift the numerous schemes, mediate between opposing points of view, and report such solution as seemed most hopeful of success.

In the House of Representatives this function was performed by the “Committee of Thirty-three,” a special “grand committee,” one from each State, created at the suggestion of Representative [Alexander R.] Boteler of Virginia. On the one hand the committee was embarrassed by the attitude of the radical Republicans, in Congress and elsewhere, who seemed intent upon blocking schemes of conciliation . . . [and on] December 13 . . . a group of Southern members of Congress, before secession had been voted in any State, issued an address to their constituents which read as follows:

“The argument is exhausted. All hope of relief in the Union, through the agency of committees, Congressional legislation, or constitutional amendments, and we trust the South will not be deceived by appearances or the pretence of new guarantees.

The Republicans are resolute in the purpose to grant nothing that will or ought to satisfy the South. We are satisfied the honor, safety, and independence of the Southern people are to be found only in a Southern Confederacy – a result to be obtained only by separate State secession – and that the sole and primary aim of each slaveholding State ought to be its speedy and absolute separation from an unnatural and hostile Union.”

(The Civil War and Reconstruction, James G. Randall, D.C. Heath and Company, 1937, pp. 200-201)

Famed historian Douglas Southall Freeman edited the Richmond News Leader from 1915 to 1949 and lived by the maxim prominently displayed in his office: “Time alone is irreplaceable. Waste is not.” He lived to regret supporting Woodrow Wilson’s war in 1917, feeling that he had been swept up in the psychosis of war hysteria. In his commentary on the Republican party below, Freeman mentions the notorious GOP method of ballots being “distributed wholesale to rascals who were divided into “blocks of five” and paid to cast them illegally.”

Bernhard Thuersam, www.circa1865.org

Making the South a Political and Social Inferno

“On the political front, Freeman was writing his first partisan editorials on behalf of [Woodrow] Wilson’s reelection. Virginia was reliably Democratic . . . [and] Freeman lashed the Republicans with gusto and turned loose his most vicious attack with a history-laden philippic. “Yes, the country knows” about the Republican party he wrote:

“It knows that during the forty-seven years and more of power of their party since the close of the war between the States the Republicans, in 1876, stole the presidency, and in 1880 bought it with their “blocks of five.” It knows that they forced upon the South the reconstruction additions to the Constitution in violation of that instrument; it knows that they turned loose upon the South an army of alien cormorants to prey upon what little substance was left us after the wreck of the war.

It knows that they made parts of the South political and social infernos, and that in malice and envy they aimed to uproot and destroy the very foundations of Southern civilization. The country also knows that they, the Republicans . . . retarded Southern industrial recuperation and Development . . . bound the nation to a juggernaut of robber protection . . . and perpetuated a banking and currency system that entrenched a currency monopoly.”

Freeman tended to be more restrained in his attacks on the Republican nominee for president, former Supreme Court justice Charles Evans Hughes. “We have had in previous years a high respect for Mr. Hughes,” he wrote, “and we have believed him a man of courage and capacity.” Now that he was the leader of “the party responsible for the most criminal class legislation the United States has ever seen,” Freeman dismissed him as a “camp-following wagon-driver.”

(Douglas Southall Freeman, David E. Johnson, Pelican Publishing, 2002, pp. 120-121)

To quell the fears of Northerners who feared emancipated slaves flooding their way in search of employment and wages, Northern leaders began advancing interesting theories. Giving the freedmen political control of the defeated South would “drain the northern Negroes back to the South” as they fled the race prejudice common in the North. Lincoln and other Republicans advanced ideas of colonization; Grant as president gave serious thought to deporting freedmen to Haiti.

Bernhard Thuersam, www.circa1865.org

Freedmen Fleeing Northern Race Prejudice

“As the war for the union began to take on the character of a war for freedom, northern attitudes toward the Negro paradoxically began to harden rather than soften. This hardening process was especially prominent in the northwestern or middle western States where the old fear of Negro invasion was intensified by apprehensions that once the millions of slaves below the Ohio River were freed they would push northward – this time by the thousands and tens of thousands, perhaps in mass exodus, instead of in driblets of one or two who came furtively as fugitive slaves.

The prospect of Negro immigration, Negro neighbors, and Negro competition filled the whites with alarm, and their spokesmen voiced their fears with great candor. “There is,” [Illinois Senator] Lyman Trumbull told the Senate, in April, 1862, “a very great aversion in the West – I know it to be so in my State – against having free Negroes come among us.”

And about the same time [Senator] John Sherman, who was to give his name to the Radical Reconstruction Act five years later, told Congress that in Ohio “we do not like negroes. We do not disguise our dislike. As my friend from Indiana [Congressman Joseph A. Wright] said yesterday, the whole people of the northwestern States are, for reasons correct or not, opposed to having many Negroes among them and the principle or prejudice has been engrafted in the legislation of nearly all the northwestern States.”

So powerful was this anti-Negro feeling that it almost overwhelmed antislavery feeling and seriously imperiled the passage of various confiscation and emancipation laws designed to free the slave. To combat the opposition Republican leaders such as George W. Julian of Indiana, Albert G. Riddle of Ohio, and Salmon P. Chase advanced the theory that emancipation would actually solve northern race problems.

Instead of starting a mass migration of freedmen northward, they argued, the abolition of slavery would not only put a stop to the entry of fugitive slaves but would drain the northern Negroes back to the South. Once slavery [was] ended, the Negro would flee northern race prejudice and return to his natural environment and the congenial climate of the South.

One tentative answer of the Republican party to the northern fear of Negro invasion, however, was deportation of the freedmen and colonization abroad . . . the powerful backing of President Lincoln and the support of western Republicans, Congress overcame [any] opposition. Lincoln was committed to colonization not only as a solution to the race problem but as a means of allaying northern opposition to emancipation and fears of Negro exodus.

(Seeds of Failure in Radical Race Policy, C. Vann Woodward, New Frontiers of the American Reconstruction, Harold M. Hyman, editor, pp. 126-129)

The freedmen did not receive the franchise because of their political maturity and judgment as the clear intent was to simply keep the Republican party in power. The Republican party’s Union League organization taught the Southern black man to hate his white neighbor, and to vote for Northern men whose own States had initiated Jim Crow laws. An excellent source for Northern antebellum racial views is “North of Slavery: The Negro in the Free States, 1790-1860,” Leon Litwack, Chicago, 1961.

Bernhard Thuersam, www.circa1865.org

Lincoln’s Party of White Supremacy

“The Republican leaders were quite aware in 1865 that the issue of Negro status and rights was closely connected with the two other great issues of Reconstruction – who should reconstruct the South and who should govern the country. They were increasingly conscious that in order to reconstruct the South along the lines they planned they would require the support and the votes of the freedmen.

And it was apparent to some that once the reconstructed States were restored to the Union the Republicans would need the votes of the freedmen to retain control over the national government. While they could agree on this much, they were far from agreeing on the status, the rights, the equality, or the future of the Negro.

The fact was that the constituency on which the Republican congressmen relied in the North lived in a race-conscious, segregated society devoted to the doctrine on white supremacy and Negro inferiority.

“In virtually every phase of existence,” writes Leon Litwack with regard to the North in 1860, “Negroes found themselves systematically separated from whites. They were either excluded from railway cars, omnibuses, stagecoaches, and steamboats and assigned to special “Jim Crow” sections; they sat, when permitted, in secluded and remote corners of theaters and lecture halls; they could not enter most hotels, restaurants and resorts, except as servants; they prayed in “Negro pews” in the white churches . . . Moreover, they were often educated in segregated schools, punished in segregated prisons, nursed in segregated hospitals, and buried in segregated cemeteries.”

Ninety-three per cent of the 225,000 Northern Negroes in 1860 lived in States that denied them the ballot, and 7 per cent lived in the five New England States that permitted them to vote. Ohio and New York had discriminatory qualifications that practically eliminated Negro voting.

Ohio denied them poor relief, and most States of the old Northwest had laws carrying penalties against Negroes settling in those States. Everywhere in the free States the Negro met with barriers to job opportunities, and in most places he encountered severe limitations to the protection of his life, liberty and property.

[Many Republican leaders], like Senator Lyman Trumbull of Illinois, the close friend of Lincoln, found no difficulty in reconciling antislavery with anti-Negro views. “We, the Republican party,” said Senator Trumbull in 1858,” are the white man’s party. We are for free white men, and for making white labor respectable and honorable, which it can never be when negro slave labor is brought into competition with it.” [And] William H. Seward, who in 1860 described the American Negro as “a foreign and feeble element like the Indians, incapable of assimilation”; [and], Senator Henry Wilson of Massachusetts, who firmly disavowed any belief “in the mental or intellectual equality of the African race with this proud and domineering race of ours.”

(Seeds of Failure in Radical Race Policy, C. Vann Woodward, New Frontiers of the American Reconstruction, Harold M. Hyman, editor, pp. 125-12”

Lincoln reportedly gave a great deal of attention to the last half of his “House Divided” speech, a trumpet call to form ranks against a South which he claimed wanted to push slavery into the Northern States, when no such threat existed. With that paragraph, Lincoln “gently cut the [Republican] party loose from its old Whig moorings and warily charted its course to the port of the abolitionists.” This solidified his party of disunion, and forced the South to react.

Bernhard Thuersam, www.circa1865.org

Moribund Republican Party Saved by Lincoln

“Lincoln possessed political sagacity to a high degree and well understood the force of public opinion. When [he] sounded the “eventually all free” note in his campaign against [Stephen] Douglas, he had a very definite political object in view. His immediate purpose was to win enough votes to get elected to the United States Senate.

His ground for asking for the votes of his fellow Illinois citizens was that he would represent those who did not want slavery to spread into any of the national territories. However, at the time he was making this race for the Senate with Douglas, it was becoming increasingly clear that slavery did not have the ghost of a show for establishment in any of the unsettled lands then belonging to the nation because the economic basis for the system was lacking in all of them.

The defeat of the slave-State constitution in Kansas made it certain that none of the land which Douglas had opened to slavery north of 36-30 would become slave. In view of the economic circumstances it was becoming more evident that unless the Republican party acquired new tenets there was no reason for continuing its organization.

The purpose for which it had been organized, i.e., restoring the free status of the land north of 36-30, having been accomplished, it would fall to pieces unless it acquired new reasons to continue its existence.

[William] Seward, one of the leading lights of the party, and [Horace] Greeley, the leading editor of the party, were willing at this time to dissolve the party, but Lincoln was unwilling for the Republicans to disband their distinctive anti-slavery organization and have nobody to follow but Douglas, who did not care whether slavery was “voted up or voted down.”

Accordingly, in his debate with Douglas, he had to supply additional material for the sustenance of the party’s life; for the time was rapidly approaching when it would become obvious to everybody that the extension of slavery into the territories had been checked permanently by prevailing economic conditions.

In order to win victory at the polls in 1858 it would be necessary for a Republican candidate not only to hold persons already enrolled in the moribund political organization, but also gain additional recruits . . . [and] two groups from which new members could be drawn were the bona-fide abolitionists and the Henry Clay “Whigs,” who had hitherto refused to enroll themselves in the sectional political party.

The abolitionists supplied the soul of the anti-slavery movement of the north, but they had in general refused to vote for anybody who compromised on anything less than a declaration in favor of abolition of slavery in the slave States. The Henry Clay Whigs of the North opposed further acquisition of territory which could be devoted to slavery but desired ultimate abolition only under conditions equitable to the South. They had the most kindly feelings toward the Southern whites and like Clay preferred the liberty of their own race to that of any other race, although they were no friends of slavery.

Lincoln so skillfully calculated the wording of his famous House-Divided speech that it won converts to his following from both the above-mentioned groups. It carried water on both shoulders, so to speak, for it was so constructed that it was acceptable to both radicals and moderate conservatives.”

(The Peaceable Americans of 1860-1861, A Study in Public Opinion, Mary Scrugham, Columbia, 1921, pp. 17- 20)

With his war bankrupting the national treasury and consuming available gold reserves, Lincoln’s solution was to create a national banking system controlled from Washington, claiming military necessity as the reason for printing paper currency of questionable value and legality. Radical Ohio Senator John Sherman knew national banking “would centralize power in Washington” and he urged congressional colleagues to “nationalize as much as possible,” even the currency, so as to “make men love their country before their States.” All private interests, all local interests, all banking interests, the interests of individuals, everything, should be subordinate now to the interest of the Government.”

Bernhard Thuersam, www.circa1865.org

Revolutionary War Financing Precedes the Federal Reserve

“At the time of the Civil War the [United States did not have a nationalized] system of banking and banknote currency, and one of the important matters of [Northern] war finance was the creation of such a system.

“[Treasury Secretary Salmon P. Chase] . . . in his report of December, 1862 . . . outlined his plan for national banks and national bank currency. What Chase proposed was a system of national banking associations under Federal supervision, which would issue bank notes based upon United States bonds and guaranteed by the Federal government.

It became law on February 25, 1863; but this law had certain defects, so that Congress faced the whole problem afresh and reframed the statute. It is therefore to the law of June 3, 1864, that one must turn for the legislative basis of the national banking system as it emerged from the Civil War. Other provisions of the act were concerned with the maintenance of a required reserve against both banknotes and deposits; the depositing of such reserve in “reserve cities” (which permitted the concentration of bankers’ funds in New York City); . . . and the use of banks as depositaries and financial agents for the government.

As a method of stimulating, or rather forcing, the sale of United States bonds, the national bank act became an essential feature of Civil War finance. After the war (1866) a tax was placed on State banknotes in order to tax them out of existence, so that national banks possessed a monopoly of banknote currency.

To think of the national banking system as a purely fiscal measure innocent of politics and free from exploitation would indeed be a naïve assumption. Investigation shows that it soon “developed into something that was neither national nor a banking system.

Instead it was a loose organization of currency factories designed to . . . [serve] commercial communities and confined…almost entirely to the New England and Middle Atlantic States.” One of the chief injustices of the system as actually administered was the favoritism shown after the war to the eastern States which received the lion’s share of the $300,000,000 of banknote circulation assigned by law as the maximum for the whole country.

As explained by George LaVerne Anderson, each State in the New England and Middle Atlantic regions obtained an amount of banknotes in excess of its quota, while not a State in the South received an amount equal to its quota.

“Massachusetts (writes Anderson) received the circulation which would have been necessary to raise Virginia, West Virginia, North and South Carolina, Louisiana, Florida and Arkansas to their legal quotas . . . The little State of Connecticut had more national bank circulation than Michigan, Wisconsin, Iowa, Minnesota, Kansas, Missouri, Kentucky and Tennessee . . . Massachusetts had more than the rest of the Union exclusive of New England and Middle Atlantic States.

[An] interesting comparison [he continues] can be made between comparatively small New England towns and the Southern States. Thus Woonsocket, Rhode Island, had more national bank circulation than North and South Carolina, Mississippi and Arkansas; Waterville, Maine, had nearly as much as Alabama; New Haven, Connecticut, had more than any single Southern State.

If it be said in answer to these facts that distributing according to population is absurd . . . it should be kept in mind that not a single Southern State had obtained, by October 1869, its legal share of the $150,000,000 which was to have been apportioned according to existing banking capital, wealth and resources.”

With some modification [this] national banking system continued for half a century. Though it had some merit, it created an inelastic currency, tended toward the concentration of bank resources in New York, opened the way for serious abuse in the speculative exploitation of bank funds, and contributed to the sharp financial flurry of 1907. Proving inadequate as a nationwide control of currency and banking, it was tardily superseded by an improved plan in the federal reserve act of 1913.”

The Civil War and Reconstruction, J.G. Randall, D.C. Heath and Company, 1937, pp. 455-458)

Crucial to the success of Lincoln’s creation of fiat money and bond-sales was master publicist and financier Jay Cooke. The latter “subsidized editors and columnists of most of the important papers of the nation” whose journalists were still receiving bribes from him when he pushed for bond redemption in gold. At the end of the war, Cooke worked hard to convince the Northern populace that their onerous debt was justified and “His efforts were supplemented by the Loyal Publications League, which was resuscitated in 1868 in order “to spread throughout the country correct views upon the subject of taxation and currency.”

Bernhard Thuersam, www.circa1865.org

Radical Ideology Printed on “Lincoln Green”

“The cruel quandary which the effort to rein in the lower classes created for radicalism became enmeshed in the debate over the greenback currency. Despite all its complexities, the currency question typified the fate of Radical doctrines, for here the Republican party repudiated its own radical handiwork.

Both the plan for a managed fiat currency and the rhetoric subsequently used in its defense were the offspring of the Radical wing of the Republican party. The legal tender bill was taken up by Congress at the end of 1861 because gold loans floated by the Treasury had exhausted the coin supply of the banks and forced them to suspend specie payments.

The Union was confronted by the prospect of runaway bank-note inflation and the sale of bonds below par value, either of which would have raised the cost of prosecuting the war toward a prohibitive level. At this juncture, Elbridge Spaulding, a Buffalo banker and Republican congressman, proposed a solution in defiance of the national traditions of States’ rights, hard money, and bank control of currency: that the federal government should issue its own interest-free notes receivable for all public dues and legal tender for all private transactions.

The value of these notes was to be stabilized by permitting their conversion into government bonds bearing 6 per cent interest, which were payable in five years and redeemable in twenty, commonly known as 5-20s’.

This majestically simple scheme met with furious opposition from the Democrats and many bankers. Pendleton, Vallandigham, Conkling and Justin Morill stood shoulder to shoulder against the bill; but its Radical supporters, led by Thaddeus Stevens, enlisted enough Conservative (and even banker) support for the scheme as a temporary war measure for it to pass the House 93 to 59. Senate opponents were strong enough to graft on an amendment providing for payment of interest on the 5-20 bonds in coin.

This action created the problem of how to raise the promised gold. [but compromise established a dual-currency system]: gold for the importer [tariffs] and bond-holder, greenbacks for everyday domestic purposes.

As the war continued and governmental needs for borrowed funds soared, both the currency supply and the debt structure grew ever more complex. By the war’s end the country was faced with rampant inflation, constant manipulation of gold prices by speculators, a morass of different bond issues, and four major forms of currency – greenbacks, specie, national bank notes, and State bank notes. The task of unraveling the mess fell on Treasury Secretary Hugh McCulloch . . . [and] with authority granted by Congress in March 1866, [he] initiated a steady withdrawal of greenbacks from circulation, and redemption of short-term notes.

[A] bill introduced by Robert Schenck to force a halt to the Treasury’s contraction policy enlisted the support not only of Stevens, Butler and Logan, but also Senator Sherman and Jay Cooke, and of numerous Democrats. The measure swept the House by a vote of 127 to 14, and in the Senate only four Conservative Republicans voted against it. The Conservative economic program had been thoroughly defeated.

Hard money advocates characterized their own position as scientifically sound and moral, and that of their [fiat money] foes as demagogic and dishonest. Speaking for Spaulding’s bill in 1862, Henry Wilson had described the debate as “a contest between brokers and jobbers, and moneychangers on the one side, and the people of the United States on the other.”

Not to be outdone, John Bingham charged the bill’s foes with misconstruing the Constitution for “the purpose of denationalizing the people . . . [and stripping] the power of the people over their monetary interests in this hour of national exigency.”

Here was the Radical ideology in its purest form, printed, as it were, on bills of “Lincoln green.” Understandably, Henry Carey attributed both the economic vigor and the patriotic spirit of the nation to protection and greenbacks . . . Thaddeus Stevens [had] judged the whole national banking system as a “mistake,” [and] declared: “Every dollar of paper [money] in circulation ought to be issued by the Government of the United States.” [Republican editor Benjamin Bannon of Pennsylvania] devised a scheme for the circulation of greenbacks as the exclusive currency of the nation, with national banks serving as distribution centers only.

From the tariff of 1846 until the Republican legislative triumphs of 1862, Bannan argued, nonproductive capital had ruled the land, and now it was again “striving to gain the ascendancy.”

(Beyond Equality, Labor and the Radical Republicans, 1862-1872, David Montgomery, University of Illinois Press, 1981, pp. 340-345)

Marylander Reverdy Johnson defended Mary Surratt in the Lincoln assassination conspiracy trial, argued that his client and others charged were civilians, and that the military commission Judge Advocate John A. Bingham convened had no jurisdiction – but to no avail. Major Bingham was a Pennsylvanian and Radical Republican appointed by Lincoln. In contrast to Bingham, Alexander H. Stephens and Jefferson Davis were the ablest constitutional scholars in the country.

Bernhard Thuersam, www.circa1865.org

The Life and Soul of the United States Government

“Read Judge Advocate Bingham’s argument before the Military Commission in Washington in reply to Hon. Reverdy Johnson. It is rhetorical sophistry, specious and plausible to the careless and uninformed reader; but it is utterly fallacious. It affects me in nothing so much as in the sadness it produces when I view it as but an additional evidence that Power, in its incipient and dangerous strides in trampling on the liberties of a country, is never wanting in able and brilliant advocates and defenders.

[Bingham’s] main ground, [is] that the Constitution . . . is intended and made for peace only and not for war, is fundamentally wrong. The Constitution was made for war as well as peace. To the various questions put by the Judge Advocate: Whether in war, men are not slain, prisoners captured, property taken, all without due process of law; the answer is, that they are not; no more than a man who, in peace, puts himself in defiance of the law officers, and is shot down by the sheriff or his posse: that is due process of law in such case. So in war.

In the cases of rebellion and insurrection, the only military forces known to the Constitution are such as are called out in the nature and character of the posse comitatus. For their government, when so called out, laws are made, as well as for the government of such permanent force as may be kept on hand. What a soldier rightfully does in taking life in battle he does according to law prescribed, and orders given in accordance with that law.

No soldiers, even in war, can be rightfully quartered on any man’s premises except in accordance with law previously described. This is an express provision of the Constitution. The idea that the Constitutional guarantees are all suspended in war and that during war martial law takes the place of the Constitution is monstrous.

The Judge Advocate’s remark about the natural principles of self-defence, and that the nation, as a man, may resort to any means to save its life, is rhetoric and not argument; its sentiment is ruinous to liberty. The life and soul of the United States Government is the Constitution and the principles with all the rights therein guaranteed. Whoever strikes at them, or at one of the least of them, strikes a deadly blow at the life of the Republic.

Nothing can be more absurd than that the life of a man can be preserved by an extinction or suspension of all the vital functions of his organism; and yet this is no more absurd than is the argument of those who speak of warding off a blow at the life of the nation, by a suspension or violation of the guarantees of the Constitution.”

(Recollections of Alexander H. Stephens, His Diary, Myrta Lockett Avary, LSU Press, 1998 (Original 1910), pp. 291-293)

The following was a September 27, 1957 editorial by US News Report editor David Lawrence.  An activist Supreme Court had just used questionable sociological reasoning, not law, to call for the desegregation of schools in the United States.  Lawrence reviewed the alleged constitutional basis for the Court’s decision, and the illegality of that basis.

Bernhard Thuersam, www.circa1865.org

“There is No Fourteenth Amendment” 

“A mistaken belief—that there is a valid article in the Constitution known as the “Fourteenth Amendment”– is responsible for the Supreme Court decision of 1954 and the ensuing controversy over desegregation in the public schools of America.

No such amendment was ever legally ratified by three-fourths of the States of the Union as required by the Constitution itself.

The so-called “Fourteenth Amendment” was dubiously proclaimed by the Secretary of State on July 20, 1868. The President shared that doubt. There were 37 States in the union at that time, so ratification by at least 28 was necessary to make the amendment an integral part of the Constitution. Actually, only 21 States legally ratified it. So it failed ratification.

The undisputed record, attested by official journals and the unanimous writings of historians, establishes these events as occurring in 1867 and 1868:

Outside the South, six States—New Jersey, Ohio, Kentucky, California, Delaware and Maryland—failed to ratify the proposed amendment.

In the South, ten States—Texas, Arkansas, Virginia, North Carolina, South Carolina, Georgia, Alabama, Florida, Mississippi and Louisiana—by formal action of their legislatures, rejected it under the normal processes of civil law.

A total of 16 legislatures out of 37 failed legally to ratify the “Fourteenth Amendment.”

Congress—which had deprived the Southern States of their seats in the Senate—did not lawfully pass the resolution of submission in the first instance.

The Southern States which had rejected the amendment were coerced by a federal statute passed in 1867 that took away the right to vote or hold office from all citizens who had served in the Confederate army. Military governors were appointed and instructed to prepare a roll of voters. All this happened in spite of the presidential proclamation of amnesty previously issued by the president. New legislatures were thereupon chosen and forced to “ratify” under penalty of continued exile from the union. In Louisiana, a General sent down from the north presided over the State legislature.

Abraham Lincoln had declared many times that the union was “inseparable” and “indivisible.” After his death and when the war was over, the ratification by the Southern States of the 13^th Amendment abolishing slavery had been accepted as legal. But Congress in the 1867 law imposed the specific conditions under which the Southern States would be “entitled to representation in Congress.”

Congress, in passing the 1867 law that declared the Southern States could not have their seats in either the Senate or House in the next session unless they ratified the “Fourteenth Amendment”, took an unprecedented step. No such right—to compel a State by an act of Congress to ratify a constitutional amendment—is to be found anywhere in the Constitution. Nor has this procedure ever been sanctioned by the Supreme Court of the United States.

President Andrew Johnson publicly denounced this law as unconstitutional. But it was passed over his veto.

Secretary of State Seward was on the spot in July 1868 when the various “ratifications” of a spurious nature were placed before him. The legislatures of Ohio and New Jersey had notified him that they rescinded their earlier action of ratification. He said in his official proclamation that he was not authorized as Secretary of State “to determine and decide doubtful questions as to the authenticity of the organization of State legislatures or as to the power of State legislatures to recall a previous act or resolution of ratification”.

He added that the amendment was valid “if the resolutions of the legislatures of Ohio and New Jersey, ratifying the aforesaid amendment, are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislatures of these States.”

This was a very big “if.” It will be noted that the real issue therefore is not only whether the forced “ratification” by the ten Southern States was lawful, but whether the withdrawal by the legislatures of Ohio and New Jersey—two northern States—was legal.

The right of a State, by action of its legislature to change its mind at any time before the final proclamation of ratification is issued by the Secretary of State has been confirmed with other constitutional amendments.

The Oregon Legislature in October 1868 — three months after the Secretary’s proclamation was issued—passed a rescinding resolution , which argued that the “Fourteenth Amendment” had not been ratified by three-fourths of the States and that the “ratifications” in the Southern States “were usurpations, unconstitutional, revolutionary and void” and that “until such ratification is completed, any State has a right to withdraw its assent to any proposed amendment.”

What do the historians say about all this? The Encyclopedia Americana states:

“Reconstruction added humiliation to suffering . . . Eight years of crime, fraud and corruption followed and it was State legislatures composed of Negroes, carpetbaggers and scalawags who obeyed the orders of generals and ratified the amendment.”

W.E. Woodward, in his famous work “A New American History” published in 1936 says:

“To get a clear idea of the succession of events let us review [President Andrew] Johnson’s actions in respect to the ex-Confederate States.

In May 1865, he issued a Proclamation of Amnesty to former rebels. Then he established provisional governments in all the Southern States. They were instructed to call Constitutional Conventions. They did. New State governments were elected.

White men only had the suffrage (the Fifteenth Amendment establishing equal voting rights had not yet been passed). Senators and Representatives were chosen but when they appeared at the opening of Congress they were refused admission. The States governments however continued to function during 1866.

“Now we are in 1867. In the early days of that year Thaddeus Stevens brought in, as Chairman of the House Reconstruction Committee, a bill that proposed to sweep all the Southern State governments into the wastebasket. The South was to be put under military rule.

“The bill passed. It was vetoed by Johnson and passed again over his veto. In the Senate it was amended in such fashion that any State could escape from military rule by ratifying the Fourteenth Amendment and admitting black as well as white men to the polls.”

In challenging its constitutionality, President Johnson said in his veto message:

“I submit to Congress whether this measure is not in its whole character, scope and object without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive of those great principles of liberty and humanity for which our ancestors, on both sides of the Atlantic, have shed so much blood and expended so much treasure.”

Many historians have applauded Johnson’s words. Samuel Eliot Morison and Henry Steele Commager, known today as “liberals”, wrote in their book “The Growth of the American Republic”:

“Johnson returned the bill with a scorching message arguing the unconstitutionality of the whole thing and most impartial students have agreed with his reasoning.”

James Truslow Adams, another noted historian writes in his “History of the United States”: “The Supreme Court had decided three months earlier in the Milligan case…that military courts were unconstitutional except under such war conditions as might make the operation of civil courts impossible, but the president pointed out in vain that practically the whole of the new legislation was unconstitutional….There was even talk in Congress of impeaching the Supreme Court for its decisions! The legislature had run amok and was threatening both the Executive and the Judiciary.”

Actually, President Johnson was impeached but the move failed by one vote in the Senate.

The Supreme Court in case after case, refused to pass on the illegal activities involved in the “ratification”. It said simply that they were acts of the “political departments of the government”. This of course was a convenient device of avoidance. The Court has adhered to that position ever since Reconstruction days.

Andrew C. McLaughlin, whose “Constitutional History of the United States” is a standard work, writes: “Can a State which is not a State and not recognized as such by Congress, perform the supreme duty of ratifying an amendment to the fundamental law? Or does a State — by congressional thinking — cease to be a State for some purposes but not for others?

This is the tragic history of the so-called “Fourteenth Amendment” — a record that is a disgrace to free government and a “government of law.” Isn’t the use of military force to override local government what we deplored in Hungary?

It is never too late to correct an injustice. The people of America should have an opportunity to pass on an amendment to the Constitution that sets forth the right of the federal Government to control education and regulate attendance at public schools either with federal power alone or concurrently with the States.

That’s the honest way, the just way to deal with the problem of segregation or integration in the schools. Until such an amendment is adopted, the “Fourteenth Amendment” should be considered null and void.

There is only one supreme tribunal — it is the people themselves. Their sovereign will is expressed through the procedures set forth in the Constitution itself.”