Circa1865

As Lincoln never accepted the independence of those States which had withdrawn to form a more perfect union, his actions can be judged in a light illuminated by the United States Constitution and the strictly enumerated powers delegated to his branch. The crime of treason is clearly defined in Article III, Section 3 of that document: “Treason against the United States shall consist only in levying War against Them, or in adhering to their Enemies, giving them Aid and Comfort.” Note the emphasis on “Them,” individually. By commencing hostilities against South Carolina and other States, he violated Section III, Article 3.

Bernhard Thuersam, www.Circa1865.org

Lincoln Acts Alone and By Decree

“By his selective use of the American past, his devotion of the nation to an abstract proposition, and his expansive vision of America’s role in the world, Lincoln undermined the old federated republic. He rewrote the history of the founding, and then waged total war to see his version of the past vindicated by success.

But in the course of subjugating the “insurrectionary” and “revolutionary” combination in the South, and in creating a unitary nation, he also compromised the integrity of the Presidency as a Constitutional office, first by invading the powers of the other two branches and then by assuming further powers nowhere mentioned in the Constitution.

He may have claimed that in the midst of an unprecedented national crisis necessity knew no law, but the Constitution in fact recognized the possibility of emergencies and delegated necessary and appropriate powers to the President and Congress. As historian Clinton Rossiter wrote: “The Constitution looks to the maintenance of the pattern of regular government in even the most stringent of crises.” But Lincoln acted alone.

From the fall of Fort Sumter in April, 1861, to the convening of a special session of Congress in July of 1861, President Lincoln ruled by decree, and on his own initiative and authority he commenced hostilities against the Confederacy. For 11 weeks that spring and early summer, Lincoln exercised dictatorial powers, combining them within his person the executive, legislative and judicial powers of the national government in Washington.

In his inaugural speech in March he had announced that the union had the right and the will to preserve itself. He promised to secure federal property in the seceded States, to collect all duties and to deliver the mails – all steps short of invasion but intended nonetheless to subjugate the South.

He assumed so-called “war-powers” – a familiar feature of the modern Presidency, but them a novelty – and proceeded to wage war without a declaration from Congress. The oft-raised concern that Lincoln could not have proceeded otherwise and still have preserved the Union should not obscure the problem of the means he resorted to.

The Constitutionality of his acts cannot be, as one historian claimed, “a rather minor issue,” for at stake was the integrity of free institutions.”

(The Costs of War, America’s Pyrrhic Victories, John V. Denson, Transaction Publishers, 1999, excerpts pp. 138-139)

The American Revolution involved two groups fighting the British: the conservatives, who reluctantly left British control as it guaranteed their power and wealth; and the radicals who wanted to overturn the aristocratic colonial structure as well as British rule from afar. The latter desired sovereign States with a weak central government, the former desired the reverse.

The author below notes “the writing and ratification of the Articles of Confederation is merely the first chapter in the constitutional history of the United States. In the years to come, section was to be arrayed against section, class against class, and party against party in an effort to determine the province of the central government and that of the States.”

Bernhard Thuersam, www.Circa1865.org

Hostile Colonies and States United

“The fundamental difference between the Articles of Confederation and the Constitution of 1787 lies in the apportionment of power between the States and the central government. In the first the balance of power was to the States, and in the second to the central government. The first constitution was one of a federal organization; the second was in essence that of a national government, although political realities demanded the retention of federal features.

The difference between the two was the result of the shifting balances of political power within the thirteen States, which enabled first one party and then the other to write its desires, its beliefs, and its interests into the colorless language of a constitution.

Hence it was the nature of union, and not its desirability, that was the major issue between the parties in 1776. The conservatives wished for the recreation, as nearly as might be, of the system that had existed before the Revolution.

The radicals tended to desire a union chiefly for the purpose of carrying on the war, but a union that would not infringe upon the sovereign authority of the individual States. They believed profoundly that only under such a system was democracy possible.

The greatest obstacle to a union of almost any kind was the States’ independence of one another. The colonies had been founded individually and had developed different traditions and attitudes in spite of a common heritage of language, law, and government.

Their relations with each other were often unfriendly, especially after the middle of the eighteenth century, as a result of rival land claims. Actual warfare had been prevented only by the external power of Britain, which subdued them but did not eliminate their animosity toward one another.

Above all, the radicals believed that the independence of the States was the guarantee of the kind of government they desired. Speaking broadly, it was democracy they wanted, and they knew full well that the kind of democracy they wanted was incompatible with centralization. Their experience with the British Empire had taught them that much, and they were not soon to forget the lesson.”

(The Articles of Confederation, an Interpretation of the Social-Constitutional History of the American Revolution, 1774-1781, Merrill Jensen, University of Wisconsin Press, 1940, excerpts pp. 109-110; 116-117)

Regarding the location of sovereignty in the American system of government, Jefferson Davis, in his postwar “Rise and Fall of the Confederate Government,” stated: “If any lingering doubt could have existed as to the reservation of their entire sovereignty by the people of the respective States when they organized the federal Union, it would have been removed by the adoption of the tenth amendment to the Constitution, which was not only one of the amendments proposed by various States when ratifying that instrument, but the particular one in which they substantially agreed, and upon which they most urgently insisted.”

Bernhard Thuersam, www.Circa1865.org

The Problem of Sovereignty

“The fundamental issue in the writing of the Articles of Confederation was the location of the ultimate political authority, the problem of sovereignty. Should it reside in Congress or the States?

Many conservatives in 1776-1777, as in 1787, believed that Congress should have a “superintending” power over both the States and their individual citizens. They had definite reasons for such a desire.

They feared mob action and democratic rule.

The radicals, on the other hand, were fighting centralization in their attack upon the British Empire and upon the colonial governing classes, whose interests were so closely interwoven with the imperial relationship. Furthermore, the interests of the radicals were essentially local.

To them union was merely a means to their end, the independence of the several States. Hence centralization was to be opposed. Finally, the democratic theory of the time was antagonistic to any government with pretensions toward widespread dominion. Theorists believed that democratic government was impossible except within very limited areas.

Thus the conflict between those who were essentially “nationalists” and those who were forerunners of the “States rights” school.

The real significance of this controversy was obscured during the nineteenth century by historians and politicians who sought to justify the demands of rising industrialism on the central government and the Northern attitude toward the South’s secession in 1860-61.

The Southern contention that the Union was a compact between sovereign States was opposed by the contention that the Union was older than the States. North historians insisted that the first Continental Congress was a sovereign body, and that it represented the people of the United States as a whole, not the people of the several States as represented in their State governments.

To prove their contentions the Northerners cited such documents as the Declaration of Independence and the preamble to the Constitution of 1787 . . . [and italicizing] to place undue emphasis on the portions of the documents which seemed to prove their arguments.

This is essentially the technique of argument used by small boys and would be unworthy of consideration had it not been so effective in shaping certain ideas which have profoundly influenced the interpretation of American history.”

(The Articles of Confederation, an Interpretation of the Social-Constitutional History of the American Revolution, 1774-1781, Merrill Jensen, University of Wisconsin Press, 1940, excerpts pp. 161-163)

The extended trial of Jefferson Davis and his growing support from many Northern men of influence brought the prosecution to the realization that he could never be convicted of treason. “It only requires one dissident juror to defeat the Government and give Jefferson Davis and his favorers a triumph,” argued [US attorney William] Evarts in a carefully planned letter to President [Andrew] Johnson; and he strongly advised that no trial should be allowed.”

Bernhard Thuersam, www.Circa1865.org

The Fierce Yell First Heard at Manassas

“Jefferson Davis, broken in health and greatly enfeebled by his confinement, came to Richmond [in May 1867] for his anticipated trial in the custody of General Henry S. Burton, commandant of Fortress Monroe, and stopped at the Spottswood Hotel, Eighth and Main Streets. A huge crowd filled the street in front of the hotel and in the vicinity of the customhouse where the [charge of treason] was to be heard.

He was represented by a remarkable array of eminent Northern attorneys, who had come to the conclusion that he was being treated with great injustice and offered their services. The list included Charles O’Conor of New York, probably the leader of the American bar; George Shea of New York; and William Read of Philadelphia. John Randolph Tucker, who had served as attorney general of Virginia, also was one of the defense counsel, together with Judge Robert Ould and James Lyon, both of Richmond.

O’Conor requested that the trial begin at once, but the government declared that this was impossible. [Presiding] Judge [John C.] Underwood, perhaps impressed by the fact that Davis was represented by such distinguished Northern counsel, said the defendant would be admitted to bail in the sum of $100,000.

The bail bond was promptly signed by such onetime foes of the Confederate President as Horace Greeley, editor of the New York Tribune, and Gerrit Smith, New York reformer and foe of slavery. Another New Yorker who signed was Cornelius Vanderbilt.

As soon as the court announced that Davis would be admitted to bail, someone ran to a window and shouted to the crowd below on Main Street, “The President is bailed!” A mighty roar of applause greeted the news.

When the formalities were completed and Davis was released from custody, he was escorted to his carriage on Bank Street by Charles O’Conor and Judge Ould. As the three men emerged from the building, they were greeted with “that fierce yell which was first heard at Manassas, and had been the note of victory at Cold Harbor, at Chancellorsville, the Wilderness and wherever battle was fiercest. The “rebel yell” reverberated again as the carriage passed along Main Street to the Spottswood.

Silence fell upon the crowd as the vehicle stopped at the hotel door. Then, as Davis rose from his seat to alight, a deep voice boomed the order, “Hats off, Virginians!” Thousands of men uncovered, as a gesture of respect for the brave man who had led them through four years of desperate conflict and then had suffered two more years in prison.

Jefferson Davis was never tried by the Federal authorities.”

(Richmond: the Story of a City, Virginius Dabney, Doubleday & Company, 1976, excerpts pp. 206-207)

Of the many reasons that war occurred in 1861, trade and sovereignty were two of the most prominent. On the first, Northern editorial opinion changed dramatically after the new Confederate States government enacted a virtual free-trade 10% tariff which would have bankrupted Northern ports and industry; the second was the question of the federal agent of the sovereign States waging war upon its creators. In the years prior to the war, Manhattan banks were lending money at modest interest to planters expanding fields for cultivation — and New England mills eagerly accepted slave-produced cotton.  Since 1865, Northern capitalists and their allies in the three branches have had a free hand in federal monetary policy and trade.

Bernhard Thuersam, www.Circa1865.org

Trade and Sovereignty

“The heart of the trade debate is not income or prices but sovereignty. The free trade agreements entered into by the United States not only violate our Constitution – a small thing, perhaps, since our own government does that very thing every day – but they also erode sovereignty.

This is obvious from the global apparatus of rigged trade established by NAFTA and GATT, but of the World Trade Organization set up in the last round of GATT alarmed even some knee-jerk free-traders. The WTO is a secret organization whose meetings are closed to the press, and it has a right to settle trade disputes between the US and other nations and the power to enforce its decisions.

When it comes right down to it, the free-traders believe that men and women are not really French or American, not really Christians or devil-worshippers; they are only rational producers and consumers, rootless hedonists and utility-maximizers who could just as well be born from a test tube as from a mother’s womb. They acknowledge no social ties except that of the contract for mutual exploitation. Concepts like “loyalty” and “treason” are as alien to them as they were to Red capitalists like Armand Hammer.

The big-money boys of the capitalist West (in and out of government) have changed their rivals but not their attitudes. They will sell arms to both sides in an African civil war and poison gas to Saddam Hussein; and if a tin-pot dictator bankrupts his country buying fighter planes, computer systems and one-way railroads, the New York banks will be happy to give him a loan backed by the World Bank and the American taxpayer.

In the good old days, American conservatives had to do battle with an evil globalist ideology called communism. They had their difference but they agreed on what they were against.

Today, they are confronted by a different globalism, the ideology of free trade and open borders and world government. If our conservative Republicans refuse to stand up to this menace, then the only way they are going to get into the White House is by buying a ticket and taking the tour.”

(Selling the Golden Cord, Thomas Fleming, Chronicles, July 1998, excerpts pp. 12-13)

Stephen A. Douglas of Illinois addressed the United States Senate on January 3, 1861 (below), after the Committee of Thirteen was unable to agree on a plan to remedy the escalating sectional crisis between North and South. He promoted several constitutional amendments to peacefully reestablish the Union on the basis of sectional integrity and national prosperity. The new Republican Party refused several attempts at compromise, and invaded the American South after provoking a conflict at Charleston harbor.  It should be remembered that Article 3, Section 3 or the Constitution defines treason as waging war against “them,” the united States.

Bernhard Thuersam, www.Circa1865.org

Preferring Compromise to War

“In my opinion, the Constitution was intended as a bond of perpetual Union. It was intended to last [forever], and was so understood when ratified by the people of the several States. New York and Virginia have been referred to as having ratified with the reserved right to withdraw or secede at pleasure. This was a mistake. [Their intention was] that they had not surrendered the right to resume the delegated powers, [and] must be understood as referring to the right of revolution, which nobody acknowledges more freely than I do, and not the right of secession.

Nor do I sympathize at all in all the apprehensions and misgivings I hear expressed about coercion. We are told that inasmuch as our Government is founded upon the will of the people, or the consent of the governed, therefore coercion is incompatible with republicanism. Sir, the word government means coercion. There can be no Government without coercion.

But coercion must always be used in the mode prescribed in the Constitution and laws. But the proposition to subvert the de facto government of South Carolina, and reduce the people of that State into subjection to our Federal authority, no longer involves the question of enforcing the laws in a country within our possession; but does involve a question whether we will make war on a State which has withdrawn her allegiance and expelled our authorities, with the view of subjecting her to our possession for the purpose of enforcing our laws within her limits.

I desire to know from my Union-loving friends on the other side of the Chamber how they intend to enforce the laws in the seceding States, except by making war, conquering them first, and administering the laws in them afterwards.

In my opinion, we have reached a point where dissolution is inevitable, unless some compromise, founded upon mutual concession, can be made. I prefer compromise to war. The preservation of this Union, the integrity of this Republic, is of more importance than party platforms or individual records.

Why not allow the people to pass [judgment] on these questions? All we have to do is to submit [the constitutional compromises] to the States. If the people reject them, theirs will be the responsibility . . . if they accept them, the country will be safe, and at peace.

The political party which shall refuse to allow [the] people do determine for themselves at the ballot-box the issue between revolution and war on the one side, and obstinate adherence to a party platform on the other, will assume a fearful responsibility.

A war upon a political issue, waged by a people of eighteen States against a people of fifteen States, is a fearful and revolting thought. The South will be a unit, and desperate, under the belief that your object in waging war is their destruction, and not the preservation of the Union; that you meditate servile insurrection . . . by fire and sword, in the name and under the pretext of enforcing the laws and vindicating the authority of the Government.

You know that such is the prevailing opinion at the South; and that ten million people are preparing for the conflict under that conviction.”

(The Politics of Dissolution: the Quest for a National Identity & the American Civil War, Marshall L. DeRosa, editor, Transaction Publishers, 1998, excerpts, pp. 194-196; 201-202)

The Republican defeat of the Crittenden Compromise and subsequent thirteenth amendment to the Constitution, which Lincoln endorsed, opened the path to war prosecuted by the North. Lincoln let it be known to Republicans that no compromise or peaceful settlement of issues dividing the country would be tolerated before his inauguration, as he put his party above the safety and continuance of the Founders’ Union.

Bernhard Thuersam, www.Circa1865.org

“On Whom Rests the Blame for the Civil War”

“From Buffalo, on January 18, 1861, [Horatio Seymour] wrote Senator [John J.] Crittenden of Kentucky in support of his scheme of compromise. It was in his opinion that this “great measure of reconciliation” struck “the popular heart.” James Ford Rhodes fortified one’s belief in the good judgment of Seymour when he studied the defeat of Senator Crittenden’s proposals. In view of the appalling consequences the responsibility of both Lincoln and [William] Seward for that defeat is heavy, if not dark – in spite of all that historians of the inevitable have written of “this best of all possible worlds.”

The committee to which Crittenden’s bill for compromise was referred consisted of thirteen men. Crittenden himself was the most prominent of the three representatives from the Border States. Of three Northern Democrats, [Stephen] Douglas of Illinois, was the leader; of five Republicans, Seward was the moving spirit. Only two men sat from the Cotton States, [Jefferson] Davis and [Robert] Toombs. Commenting on the fateful vote of the committee, Rhodes observed:

“No fact is more clear than that the Republicans in December [1860] defeated the Crittenden compromise; a few historic probabilities have better evidence to support them than the one which asserts that the adoption of this measure would have prevented the secession of the cotton States, other than South Carolina, and the beginning of the civil war in 1861 . . . It is unquestionable, as I have previously shown, that in December the Republicans defeated the Crittenden proposition; and it seems to me likewise clear that, of all the influences tending to this result, the influence of Lincoln was the most potent.”

Two-thirds of each House . . . recommended to the States a compromise thirteenth amendment to the Constitution, as follows: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.” Conservative Republicans voted with the Democrats to carry this measure of which Lincoln approved in his inaugural address.

“As bearing on the question on whom rests the blame for the Civil War,” observes Rhodes, this proposed thirteenth amendment and its fate is of the “highest importance.”

(Horatio Seymour of New York, Stewart Mitchell, Harvard University Press, 1938, pp. 223-224)

It is early July, 1863 and Lee’s barefoot and ragged Army of Northern Virginia has moved northward into Pennsylvania to acquire needed supplies, food and fodder, plus allow the countryside of Virginia time to heal from two years of unrelenting warfare upon her soil. With Lee is “Stonewall” Jackson, who earlier enveloped the enemy flank at Chancellorsville and drove them in disarray and confusion from the field.

Lee meets the newest savior of the North, Gen. George Meade, at Gettysburg.  While Lee feints with a massed frontal attack, Jackson has penetrated the enemy left flank with full force after which Meade’s invincible army flees in headlong retreat, and then total surrender. The entire North is now seized with mortal fear of invasion, defeat and occupation by Southern armies.

At the same time in the Western Theater, Vicksburg has held valiantly against enemy assault despite its civilian population reduced to eating rats and dogs for survival. General Joseph E. Johnston successfully repulsed costly enemy assaults while Southern cavalry harassed and destroyed Northern supply lines to the South.

Poised to move northward at President Jefferson Davis’s command, Johnston eyes the railroad junction of Chicago after liberating Tennessee and Kentucky from enemy rule, releasing Confederate prisoners, and enlisting many of the Midwest Copperhead faction into his growing force. In the East, Lee threatens the northern capital of Washington and will move toward New York City next.

Lee dispatches Jackson with 35,000 men to capture Harrisburg while he encircles and captures Washington; General JEB Stuart’s cavalry has destroyed enemy communications and supply trains, and Lee intends to split their army in classic Napoleonic style — defeating them in detail.

Washington is soon overwhelmed and occupied – Stuart has captured and imprisoned numerous Northern leaders to include Thaddeus Stevens, Charles Sumner, William Seward, Benjamin Wade, Simon Cameron, Salmon Chase, Stanton, Halleck and Lincoln. Lee himself had to intervene lest his soldiers summarily hang Lincoln and his conspirators for the crime of igniting the conflict and warring upon Southern civilians.

Fear of the scaffold has sent the radical abolitionists fleeing to Europe for asylum.

With the Northern government imprisoned, President Davis has commanded the armies in blue to immediately lay down their weapons, return to their homes to lead peaceful lives, and take an ironclad oath to never again take up arms against the Confederate States of America.

The Confederate Congress creates several military districts overseen by Southern general officers, who preside over State governments writing new constitutions. These will prohibit anyone who had taken up arms against the Confederate States of America, or was an officer in the United States Army 1861-1865, or was a member of the Republican Party, from voting and holding political office.

The Confederate Congress has determined that it will consider the former United States as a conquered territory, with former individual Northern States, which had committed suicide, admitted to the Confederate States of America at the pleasure of Congress.

Congress directs that each Northern State which contributed troops to the Lincoln regime are required to pay financial reparations to those Southern States suffering depredations and destruction by those troops.

Further, all former officers of the Northern military who engaged in terror and atrocities against civilians during the war will be tried for war crimes along with Lincoln. Lincoln and his conspirators will be tried for treason as they waged war against the States, in violation of Article 3, Section 3, of the United States Constitution.

To set a proper example to follow, the Confederate Congress requires all Northern mill and factory owners to provide adequate food, medical and old age care for their employees, who previously were turned out to starve when unable to work. They and other Northern industries are directed to hire black freedmen who emigrate northward in search of employment, which will spur emancipation in the South.

And finally, Southern authors will write the history of the war against the South, and the causes of it.

Bernhard Thuersam, www.Circa1865.org

On the subject of naturalization of citizens, Congress derives its limited authority through Article I, Section 8 of the United States Constitution: “To establish [a] uniform rule of Naturalization . . .” and there was no intention to create a separate citizenry “of the United States.” The individual States determine who will become a citizen, and who is entitled to vote. Alexander H. Stephens expounds on this below.

Bernhard Thuersam, www.Circa1865.org

Radical Errors of the Public Mind

“P.M. – The article on naturalization in the cyclopedia attracted my attention. It is strange what errors have crept into vogue and pass without scrutiny or question; especially on naturalization and its sequence, citizenship of the United States. The subject is treated as if Congress were empowered by the Constitution to confer upon aliens citizenship of the United States distinct from citizenship of particular States and Territories.

The truth is, Congress has no power to naturalize or to confer citizenship of the United States. Its only power is to establish a uniform rule to be pursued by the respective States and Territories on admitting aliens to their own citizenship.

Before the Constitution was adopted, each State possessed the right as an Independent Sovereign Power to admit to citizenship whom she pleased, and on such terms as she pleased.

All that the States did on this point in accepting the Constitution, was to delegate to Congress the power to establish a uniform rule so that an alien might not be permitted to become a citizen of one State on different terms from what might be required in another; especially, as in one part of the Constitution it is stipulated that the citizens of each shall be entitled in all the rest to the rights and privileges of their citizens.

But no clause of the Constitution provides for or contemplates citizenship of the United States as distinct from citizenship of some particular State or Territory. When any person is a citizen of any one of the States united, he thereby, and thereby only, becomes and can be considered a citizen of the United States.

Errors in the public mind on this question are radical and fundamental, and have the same source as many others equally striking.”

(Recollections of Alexander H. Stephens, His Diary, Myrta Lockett Avary, LSU Press, 1998 (original 1910), excerpts pp. 312-313)

Though James Buchanan did little to stem the drift toward confrontation in 1860, and helped light the fuse of war by refusing to order Major Anderson out of Fort Sumter, he did understand the constitutional limits of a president’s authority. He was an experienced diplomat who preferred negotiation, and was perhaps misled by his successor that a constitutional convention of the States would be soon called to peacefully resolve the crisis.

Bernhard Thuersam, www.Circa1865.org

Accommodating Secession Way Up North

“Quebec secession was the subject of an historic judgement handed down by the supreme court of Canada on August 20, 1998. This question reached the court by a “reference” or “renvoi” initiated by the governor general, in effect a request by the Prime Minister and his cabinet for an advisory opinion.

The judgement is not binding or enforceable by writs as in ordinary litigation, but is judicial advice given to the government of Canada.

The court held, while the government of Quebec has no constitutional right to work a unilateral secession of the province from Canada, the people of Quebec enjoy a constitutional right to have a referendum at public expense and without interference, and that, if the people of Quebec clearly vote for independence, the government of Canada has a constitutional duty to negotiate in good faith to accommodate their expressed desire.

The people of Quebec refused to be absorbed [into the dominant Anglo-Canada] and they intend to remain a distinct society – be constitutional accommodation with Anglo-Canada if possible, by independence if necessary. At the moment, separatism is an active force in Quebec, mainly because of a new constitution (the Canada Act of 1982) was imposed upon Quebec over the protest of her government.

In their recent judgment, the supreme court of Canada [was] right insofar as [the Constitution Acts of 1867-1982] include no express right of constitutional mechanism for secession. Yet by implication, the court wholly repudiated the course taken by Abraham Lincoln against the South in 1861-1865.

The justices understand the truth stated by President James Buchanan on the occasion of Lincoln’s election in 1860” “Our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in a civil war. If it cannot live in the affections of the people, it must one day perish. Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hands to preserve it.”

(Cultural Revolutions, John Remington Graham, Chronicles, November 1998, excerpts pg. 7)