Circa1865

New Hampshire native President Franklin Pierce was well-aware of the increasing sectionalism pushing the South toward secession, and Northern States erecting laws in conflict with federal law. He would not countenance State obstruction of constitutional obligations while they remained within the Union. He also understood, as Lincoln seemed not to, that the comity of the States was the glue binding the Union together. Without this, the Union was at an end and brute force could not save it.

Bernhard Thuersam, www.Circa1865.org

A “Forbidden Journey”

“President Pierce’s affinity for the rule OF law in contrast to the rule BY law explains why such scorn has been heaped upon his presidency.

President Lincoln, had he complied with the rule of law and deferred to the U.S. Constitution on the issues of secession, the writ of habeas corpus, the blockade of Southern ports, etc., may have presided over the realignment of the Union, but he also would have placed the rule of law on a constitutional pedestal that would have constrained subsequent presidents from disregarding constitutional constraints in the quest for power.

But Lincoln’s claim to fame is not that he adhered to the rule of law, but that he had the audacity to disregard it.

Lincoln’s unfortunate legacy is that he destroyed American federalism by creating a coercive indissoluble Union. Consequently, the policy prerogatives of imposition, nullification, and secession are now placed beyond the grasp of the States. Nevertheless, the ever-expanding national government’s powers continued to occupy the efforts of the courts in post-bellum America.

A case in point is Justice [George A.] Sutherland’s opinion in Carter v. Carter Coal Company (1936) a case which stemmed from FDR’s expansion of national powers vis-à-vis the States Tenth Amendment police powers. Justice Sutherland articulates the anti-Lincoln premise that “The States were before the Constitution; and consequently, their legislative powers antedated the Constitution.”

To concede otherwise is to begin a “forbidden journey” through which the national government takes over the “powers of the States” and the States “are so despoiled of their powers” that they are reduced to “little more than geographical subdivisions of the national domain. It is safe to say that when the Constitution was under consideration, it had been thought that any such danger lurked behind its plain words, it never would have been ratified.”

Justice Sutherland’s logic is just as applicable today, with the qualification that the “forbidden journey” has progressed to where the national government may be so “despoiled of its powers” that it will be reduced to “little more than geographical subdivisions” of the international domain.

In conclusion, America is in trouble. With unmanageable public debt . . . and fiscal obligations in excess of one hundred trillion dollars, not to mention the cultural and political state of the Union, Americans continue to pay homage to the villains that laid the tracks to our present sorry state of affairs.”

(President Franklin Pierce and the War for Southern Independence, Marshall DeRosa; Northern Opposition to Mr. Lincoln’s War, D. Jonathan White, editor, Abbeville Institute Press, 2014, excerpts pp. 38-40)

Jefferson foresaw problems between the States and the general government, and noted in an 1824 letter to John Cartwright that if a collision can “neither be avoided nor compromised, a convention of the States must be called, to ascribe the doubtful power to that department which they may think best.” He saw further that the “encroachments of State governments will tend to an excess of liberty which will correct itself, while those of the general government will tend to monarchy, which will fortify itself from day to day, instead of working its own cure. The very basis of the Tenth Amendment was to forbid the general government from assuming powers not delegated.

Bernhard Thuersam, www.Circa1865.org

State Governments Must Control the Federal Government

“Jefferson’s real concern was for American law, not international morality. He said he feared he had “gone beyond the Constitution” in agreeing to purchase Louisiana. Much as he believed the United States “must have the Mississippi”; much as he wanted there to be one nation on the continent, and an overland route to the Pacific coast, he was at least as much concerned for human liberty.

With respect to foreign affairs, he believed that only a strong Federal government could conduct them. But with respect to internal affairs, he believed the Federal powers were very narrowly defined, and that all other powers, including the right to secede, belonged to the States.

He utterly rejected the Federalists’ theory that the Constitution “implied” that the government could assume any powers not specifically spelled out in that document. If that we so, he felt, a future Federal government could justify almost anything on grounds that the laws it passed helping to promote the general welfare, even if their effect was to convert the republic into a monarchy.

The only protection the people had, he felt, lay in their control of their State governments. If the several States did not retain all powers not granted to the Federal government, they might as well give up any pretense of having rights of their own.

The issue of States’ rights versus Federal rights was a basic problem to the framers of the Constitution, as the vague language of the Constitution suggests; it was a basic problem to Jefferson; it became a bloody one during the Civil War, and it still to great extent plagues the United States today.”

(Eminent Domain: the Louisiana Purchase and the Making of America, John Keats, excerpts pp. 341-342)

Hamilton and Washington both foresaw ways in which future demagogues would undermine the Constitution by usurping powers reserved to other branches, and leading the country into war to hold onto power and increase their wealth. The usurper would be Lincoln, who wielded the power of an absolute dictator between April and July 1861, and by the time Congress had assembled in the latter month, could arrest and imprison anyone as he launched a ruinous and bloody war upon his own people.

Bernhard Thuersam, www.Circa1865.org

Hamilton Envisions an American Pericles

“The Founders all knew war first hand; war on American soil, with a full third of their own countrymen against them, often in arms alongside the enemy. They built into their [Constitution] machinery to handle treason and rebellion. But they knew that crisis and war were favorite tools of demagogues. Hamilton reminded his readers of “the celebrated Pericles,” leader of Athens, motivated by fear and pique, who led his nation into a bloody and ruinous war to save his own political skin and to escape economic damage he had helped visit upon the state.

Hamilton saw that a leader who took America into war could use the circumstance to rob her of cherished liberties: “The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort to repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”

“If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, Washington wrote, “let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can any time yield.”

In Washington’s “Farewell Address,” the connection between perpetual voluntary union, and obedience to the Constitution, is explicit. His prayer for the country, he said, was “that your union and brotherly affection may be perpetual; that the free Constitution, which is the work of your hands, may be sacredly maintained.”

The cult of the union, as it evolved in the Civil War era, identified “liberty” and “union” as essentially identical. But to the Founders, “liberty” was tied to the balance of powers they had carefully woven into the Constitution: “Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian.” Washington wrote.

A little-known fact of the Constitution is that two of the largest States — Virginia and New York – made the right to withdraw from the union explicit in their acceptance of the Constitution. And in such an agreement between parties as is represented by the Constitution, a right claimed by one is allowed to all.”

(The Legality of Secession, excerpts, www.etymonline.com)

Both Jefferson and Hamilton recognized that sectionalism had been a part of American politics since colonial days, and the emerging West was adding a third section to the political landscape. The political problem facing Federalists and Republicans was “how to win the allegiance of the absconding swindlers, murderers, fugitive slaves, bankrupts, brigands and failures” who settled the wild areas of the West. And certainly those Westerners would give their political allegiance to whomsoever got them what they wanted. Therein lay the seeds of future war.

Bernhard Thuersam, www.Circa1865.org

The Seeds of Sectionalism and War

“[Jefferson] saw that factions were forming in the United States, and the political parties were emerging. This was something the Founding Fathers had not envisioned when they wrote and agreed upon the Constitution. But it was clear enough to Jefferson that, on one side, there was a Federalist Party, led by Hamilton.

This party, he felt, had made a virtual prisoner of Washington . . . and was hiding behind his prestige to effect its nefarious scheme of converting the United States into a monarchy for the specific benefit of Northern financiers. Hamilton, Jefferson somewhat wildly wrote, “was not only a monarchist, but for a monarchy bottomed on corruption.”

Jefferson saw the Federalists as aristocrats who were the enemies of natural law and the rights of man. They interpreted the Constitution to mean the Federal government could seize any rights not specifically denied it, in order to destroy liberty. They were hand in hand with the financiers of Great Britain, and their opposition to slavery was not humanitarian, but just a hypocritical way of seeking to undermine the economy, and hence the power, of the agricultural Southern States.

On the other side, in Jefferson’s view, there ought to be the “anti-Federalist” party, which would stand for strict construction and the rights of States in order to safeguard the rights of man. As he saw them, the anti-Federalists were those who feared the creation of a national bank as another Federalist plot to destroy these rights; they were the true revolutionaries, whereas the Federalists represented the forces of reaction.

As revolutionaries, the republicans were therefore the enemies of monarchical Great Britain and the friends of revolutionary France. If they believed in slavery, it was because – well, of course nobody could really believe in slavery; the South was at heart republican and of course someday slavery would be abolished, but not right now. It was not the time to raise that question: the times now demanded opposition to the anti-revolutionary Federalists.

The anti-Federalists should form a party.”

There was meanwhile a nation to govern – one whose destiny lay clearly in the West. Here, between the Appalachians and the Mississippi, were two-hundred thousand American settlers whose political opinions could be decisive. Both saw opportunities to speculate in western lands [but] both feared that the balance of political power might shift from the East Coast to these broad western lands with the swift growth of population there. It was a possibility that occurred to western politicians as well.”

(Eminent Domain: the Louisiana Purchase and the Making of America, John Keats, Charterhouse, 1973, excerpts pp. 242-244; 247-248)

Lord Acton writes that “secession is not a theory of the Constitution, but a remedy against a vicious theory of the Constitution” — the right of a minority to withdraw from a political agreement which they no longer wish to be part of, and to escape the tyranny of the majority. Even a nationalist like Hamilton saw the balance necessary between national and State governments, and that both will be prevented from trespassing on each one’s constitutional limitations. The States would be further protected by the strictly delegated, and few, powers of the general government.

Bernhard Thuersam, www.Circa1865.org

New England Sets the Example for the South

As a consequence of troubles between Napoleon’s Berlin decree and the British response, President Jefferson determined to lay an embargo on all American vessels – with a subsequent Bill passed December 22, 1807.

“The embargo was a heavy blow to the ship-owning States of New England . . . the others were less affected by it. “The natural situation of this country,” says Hamilton, is to divide it interests into . . . navigating and non-navigating States. This difference in situation naturally produces a dissimilarity of interests and views respecting foreign commerce.”

Accordingly the law was received in those States with a storm of indignation. Quincy, of Massachusetts, declared in the House: “It would be as unreasonable to undertake to stop the rivers from running into the sea, as to keep the people of New England from the ocean . . .”

The doctrine of State-rights, or nullification, which afterwards became so prominent in the hands of the Southern party, was distinctly enunciated on behalf of the North on this occasion.

Governor Trumbull, of Connecticut, summoned the legislature to meet, and in his opening address to them he took the ground that, in great emergencies, when the national legislature had been led to overstep its constitutional power, it became the right and the duty of the State legislatures “to interpose their protecting shield between the rights and the liberties of the people, and the assumed power of the general government.”

They went farther and prepared to secede from the Union, and thus gave the example which has been followed, on exactly analogous grounds, by the opposite party.

John Quincy Adams declared in Congress that there was a determination to secede. “He urged that a continuance of the embargo much longer would certainly be met by forcible resistance, supported by the legislature, and probably by the judiciary of the State . . . Their object was, and had been for years, a dissolution of the Union, and the establishment of a separate confederation.”

Twenty years later, when Adams was President, the truth of this statement was impugned. At that time the tables had been turned, and the South was denying the right of Congress to legislate for the exclusive benefit of the North Eastern States, whilst these were vigorously and profitably supporting the Federal authorities.

It was important that they should not be convicted out of their own mouths, and that the doctrine they were opposing should not be shown to have been inaugurated by themselves.

(The Civil War in America: Its Place in History; Selected Writings of Lord Acton, Volume I, Essays in the History of Liberty, J. Rufus Fears, editor, Liberty Fund, 1985, excerpts pp. 231-234)

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)