Browsing "Traitors and Treason"

Monuments to Timeless Virtue and Infamy

The Grand Army of the Republic (GAR) formed after the war and quickly became a powerful organization whose political might led historians to see it as a pension lobby or “bloody-shirt” Republican club. The membership sustained the postwar Republican Party and Glided Age political corruption that followed the war, and no Northern politician’s campaign was complete unless he received the blessing of the GAR. The organization maintained the view that they saved the Union and that the South was guilty of treason, though the Constitution clearly states in Article III, Section 1: “Treason against the United States, shall consist only of levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” “Them” means the States comprising the United States.

Bernhard Thuersam, www.Circa1865.com

 

Monuments to Timeless Virtue and Infamy

“A . . . theme that emerged from GAR memorializations of the 1880s was that the war had broad meaning, not to say a moral, that transcended individual combat experiences. With occasional exceptions . . . the authors of the personal war experiences left the moral unstated. But in campfire speeches and war lectures, the repeated lesson was one of national salvation: the war had maintained the Union.

Prewar social and economic differences between the sections, issues of free labor and political power in the West, and especially the questions of blacks and slavery received scant mention in celebrations of the war’s outcome. Instead, the grand achievement of the Northern armies had been to rescue the indivisible nation as it had existed before . . . The war was a mission accomplished; the nation, something maintained intact rather than something greatly changed. It was a rhetoric pf preservation.

Both Civil War armies invoked republican traditions; both pointed to the same Revolutionary symbols. The other great influence on popular historical thinking during the antebellum years was evangelicalism . . . in the North, evangelical crusades against sin, culminating in the antislavery movement, drew on images of battles and the Apocalypse.

Yankee reformers pictured it as the crossroads of history. Armageddon, a climatic struggle from which the nation would emerge redeemed. Hymns urged patriots to march; ministers spoke of millennial change. No longer was the Republic seen as an entity formed at the beginning; it needed to be actively saved, not passively preserved. History was to be shaped, not studied, for examples of virtue.

At the same time, the overwhelming importance of the Republic’s preservation required permanent and public commemoration. Veterans proclaimed the message of national preservation in Congress, where on pension questions they drew pointed inferences regarding the duty of the nation to its saviors. And in city after city, new monuments refuted in stone any notion of the Civil War’s “pastness.”

As long as ex-Confederates did not question the moral lesson of the war, they were treated cordially – in fact, they were sometimes contrasted favorably with “loyal” noncombatants. Especially after 1880, [GAR] posts and encampments occasionally socialized with veterans from the other side.

[In 1894], white Northerners and white Southerners were engaged in a veritable love feast of reconciliation, complete with Blue-Grey reunions, Lost Cause nostalgia, and Confederate war monuments (including the first to be permitted at Gettysburg).

When it came to drumming the lessons of the war into the next generation, however, the ex-Confederates were doomed forever to play the heavy, always on the side of error, always vanquished by the hosts of the righteous. In the words of GAR commander William Warner, “we were eternally right and . . . they were eternally wrong.”

The line dividing cordiality from hostility ran between those actions (such as lecture invitations) that implied only sociability between former foes and those (such as the erection of Confederate monuments and waving the Confederate flag) that seemed to be aimed at subverting the message of national salvation.

Union veterans commonly expressed the division by saying that while the former rebels might be fine fellows, their principles were, and always would be, wrong. In 1874 [a Massachusetts veteran] . . . objected to the decoration of Confederate graves on Memorial Day by saying “he had nothing but the kindest feelings toward those who fought against us . . . but . . . let it be understood that we distinguish between loyalty and disloyalty; the latter is the treason against which we fought, and the former we pay respect and tribute to.”

In 1891, [GAR CIC] John Palmer allowed that the Confederates had been gallant and said the GAR was willing to accept them as fellows “on the broad grounds of American citizenship and unconditional loyalty.” But he went on to denounce several GAR men who had marched in Atlanta parade that included the Confederate flag. In New York a GAR member was dishonorably discharged for toasting Jefferson Davis at a Southern banquet.

In general, Grand Army posts objected most strenuously to those behaviors or symbols that implied honor to the Confederate cause – a flag, a monument, a toast to a president, flowers on a grave. Nor was it with the proper exegesis of battles, for those conflicts were by definition one-time only events. The worry was not so much about the lauding of individual Confederates (unless they were symbolic individuals such as Davis), for they would die eventually.

Instead, GAR posts worried about transmitting the moral of the war to the next generation intact. If monuments were to call forth “public valor and virtue in all coming time,” the lessons of war could not be subject to historical change. And if the virtue of the Union was to be timeless, so must be the infamy of the Confederacy.”

(Glorious Contentment, the Grand Army of the Republic, 1865-1900; Stuart McConnell, UNC Press, 1992, excerpts, pp. 181; 186-188-190-192)

New England Rules and Saves!

New England opposed the 1812 war with England by refusing troops and supplying the enemy; their Hartford Convention of 1814 would have led to its secession from the United States. Andrew Jackson’s victory in New Orleans ended that war before New England seceded. One can see in the War Between the States the rematch of Jeffersonian Republicanism versus New England Federalists, with the latter returned to power in Washington in 1861.

Bernhard Thuersam, www.Circa1865.com

 

New England Rules and Saves!

“In 1800, Thomas Jefferson was elected President by the combined votes of the middle States, the coastal South and he Southern highlands, against the entrenched opposition of New England which still strongly supported [John] Adams.

This new Jeffersonian coalition of Virginia, Pennsylvania and the backcountry was destined to dominate American politics for a quarter-century (1801-1825). Its ideology was a complex and unstable combination of three different ideas of liberty, which derived not from “classic republicanism” in Europe but from the inherited folkways of British America.

Jeffersonians in the middle and northern States believed in reciprocal liberty; the backcountry thought more in terms of natural liberty; Tidewater Virginians drew upon their heritage of hegemonic liberty. The Republican leaders – Jefferson himself, Madison and Gallatin – had their own highly-developed principles. Together they created a pluralist libertarian movement.

But even as Jefferson espoused different libertarian ideals, they all opposed New England’s idea of ordered liberty, which most Americans believed was a contradiction in terms. The major legislation of the Adams presidency was repealed: the Alien Friends Act, the Sedition Act, the Naturalization Act, the Bankruptcy Act of 1800, the Judiciary Act of 1801, and the new tax measures were all overturned.

Support for [Adam’s] Federal party dwindled everywhere except New England. The purchase of Louisiana (1803) and the annexation of West Florida (1810) vastly enlarged the backcountry, and promised to shift the balance of regional power toward the South and West.

Now it was New England’s turn to think about disunion. In the period from 1804 to 1814, a separatist movement gathered strength in that region . . . [with] sermons and town meetings which talked of God’s Providence for his chosen people. Yankee children were taught to sing (to the tune of Rule Britannia!): “Rule, New England! New England rules and saves!”

The Federalist leader Fisher Ames believed that New England was “of all the colonies that were ever founded, the largest, the most assimilated, and to use the modern jargon, nationalized, the most respectable and prosperous, the most truly interesting to America and humanity, more unlike and more superior to other people (the English excepted).”

New England Republicans shared this nascent sense of Yankee nationalism. James Winthrop, for example, praised the determination of New Englanders to “keep their blood pure.” He added, . . .“the eastern States have, by keeping separate from the foreign mixtures, acquired their present greatness in a century and a half, and have preserved their religion and morals.”

(Albion’s Seed, Four British Folkways in America, David Hackett Fischer, Oxford University Press, 1989, excerpts, pp. 844-845)

Treason in Wartime North Carolina

The traitors and misfits who terrorized North Carolinians during the war, called “Buffaloes,” were a by-product of the Northern invader. General Pickett and Hoke, during their attempts to liberate northeastern North Carolina in 1863-64, dealt severely with local men who aided and abetted the enemy. The Fort Branch mentioned below, was named in honor of Brigadier-General Lawrence O’Bryan Branch, a native of nearby Enfield, NC who was killed in action at Sharpsburg in mid-1862.

Bernhard Thuersam, www.Circa1865.com

 

Treason in Wartime North Carolina

“The Tenth North Carolina Regiment was encamped near Fort Branch (about five miles east of Hamilton on the Roanoke River), and was awaiting the Federals, in December 1864. A force of Federals . . . were known to be advancing from Plymouth, reaching the vicinity of Fort Branch in the night of December 11.

“The enemy, piloted by some buffaloes (traitors) crossed the creek below (the east) and took our troops at the bridge in the rear. We had turned off from the main road from Tarboro to Williamston in order to come in by Hamilton to reinforce from the rear our troops at Butler’s Bridge.”

The term buffaloes, commonly referred to renegade bands in eastern North Carolina, composed of armed Negroes, native Union bushwhackers, and criminally-intentioned local misfits. They preyed on the prosperous and poor alike, relying on brutality for their success.”

(A Tarheel Confederate and His Family, Robert Garrison Elliott, RGE Publications, 1989, excerpts, pp. 51; 60)

 

Santa Anna Popular Up North

The Mexican War saw the sectional divide widen further as abolitionists and their allies in the North asserted that this was “simply a Southern plot to bring more slave States into the Union.” As New England sided with the enemy during the War of 1812 by selling them supplies and threatened to secede and form a separate republic, they would side with the enemy in 1846. The contingent of Americans fighting with the Mexicans noted below were the “San Patricios,” Irish Catholic immigrants in the US Army who refused to fight against Mexican Catholics. Those captured were executed for treason.  Ohio Senator “Black Tom” Corwin denounced the war in Congress and was summarily hung in effigy near Buena Vista by Ohio troops. They first dressed his likeness in a Mexican uniform.

Bernhard Thuersam, www.Circa1865.com

 

Santa Anna Popular Up North

“Daniel Webster flung his oratory into caustic criticism of the war and he was abetted by fanatics like [Charles] Sumner. Soon, drinking of this heady fire water, Northern newspapers were fulminating against [President James] Polk and the continuance of the war. This was one of the few wars waged by the United States in which the enemy was popular.

Black Tom Corwin said that American soldiers in Mexico should be welcomed by “hospitable graves,” and a whole nightmare school of literature sprang up. Some papers called for European intervention. One said editorially: “If there is in the United States a heart worthy of American liberty, its impulse is to join the Mexicans.” Another said: “It would be a sad and woeful joy, but a joy nevertheless, to hear that the hordes of Scott and Taylor were every man of them swept into the next world.”

Santa Anna, the rascally Mexican commander, became a hero in Boston and New York, and there was even a contingent of Americans who fought with the Mexican army.”

(Merchants of Death, A Study of the International Armament Industry, H.C. Engelbrecht & F.C. Hanighen, Dodd, Mead & Company, 1934, excerpt, pp. 28-29)

The Unspoken Significance of Fort Fisher’s Fall in 1865

Fort Fisher, January 2017

This weekend the Fort Fisher historic site near Kure Beach, North Carolina observes the 152nd anniversary of the second Northern attack that succeeded in capturing the fort after a massive bombardment of 50,000 shells which killed or wounded 500 or so mostly-North Carolinians who fought valiantly from traverse to traverse before capitulating. Those taken prisoner by the enemy were shipped northward to frigid prisons in New Jersey and New York – the latter infamously referred to as a death camp.

Many people visiting Fort Fisher note that it can be an eerie experience – like walking the fields of Appomattox and sensing the death-knell of liberty and independence it is known for.

The State employees of the historic site will hold events of blue-clad troops splashing ashore to free North Carolinians from the yoke of independence and self-government, as well as waving the US flag from the top of captured cannon traverses. The red, white and blue flags of the North Carolinians will be minimized if shown at all. Rather than note that most of the defenders were North Carolina farmers from surrounding counties, the fort and media will refer to them as merely “Confederates.”

Often noted during these observances is the enemy soldier who fell out of ranks to visit his mother’s home — as his brother was fighting to defend his country in a grey uniform.  And few seem to comprehend that this wayward North Carolinian in blue is the very definition of treason, of aiding, abetting and going over to the enemy.

Also, what is usually not discussed at events like this are the sectional differences of that era and multitude of reasons why the South was invaded, and the important aftermath of that battle for the fort. What really happened in mid-January 152 years ago was the ending of an American struggle for freedom and independence, the consent of the governed to rule themselves, and the equivalent of Washington surrendering to British forces at Yorktown.

What happened after the fort fell is very important to remember, especially as one looks at the blue-clad reenactors splashing ashore waving their flag on what was then foreign soil to them. What was their true purpose?

After the fort was overwhelmed and silenced, the 10,000-man enemy army marched toward Wilmington in two columns and after some spirited skirmishes, captured the city, imposed martial law, seized private property, and forced citizens to swear allegiance to a foreign government in order to conduct their businesses.

When the enemy departed Wilmington, they moved to join other enemy forces coming into North Carolina from South Carolina and from occupied New Bern. At Bentonville the combined enemy outnumbered Southern forces 4 to 1 — who fought them to a standstill – they then moved on to capture Raleigh, arrest and imprison the governor, and impose military rule on North Carolina. Think of the French capitulation to Germany in 1940.

After the surrender of Southern forces in May, 1865 at Bennett Place, the “reconstruction” of the South lasted until 1877 – some say it never ended — though without armies and without as much gunfire. North Carolina endured rule by a new State constitution imported by a military consul appointed from Washington, and corrupt local men who sought employment with the late enemy. The new imported constitution settled the secession issue for good by stating that North Carolina will never again seek independence or political freedom from the United States Government.

Understandably, July 4, 1865 in occupied Wilmington was a muted affair, celebrated only by locals collaborating with the enemy and newly-freed blacks who were unaware that they had only changed masters.  Blue-clad sentries still patrolled the streets to ensure the rebellion did not re-ignite; then came the vultures known as “carpetbaggers.”

Former Governor Zebulon Vance described the aftermath of war in North Carolina in 1890:

“The carnival of corruption and fraud, the trampling down of decency, the rioting in the overthrow of the traditions of a proud people, the chaos of hell on earth which took place beggars the descriptive powers of plain history . . . I believe a committee of Congress, who took some testimony on this subject, estimated in 1871 the amount of plunder which was extracted from the Southern people in about 5 short years — some $300 millions of dollars in the shape of increased debt alone, to say nothing of the indirect damage inflicted by the many ways of corruption and misrule which cannot be estimated in money.”

The fall of Fort Fisher and ultimate surrender at Bennett Place led to the carnival of corruption that Vance illuminated. We should remember what occurred at Fort Fisher in mid-January 1865 for what it was and what it led to — the ending of an American struggle for freedom and independence, the consent of the governed to rule themselves. This is the sad fact that we should observe, and be cognizant of when gazing at the great earthen fortress.

Bernhard Thuersam

 

 

Jefferson Reflects Upon Massachusetts

New England, and Massachusetts in particular, was supplying the French as General James Wolfe was enroute to the Plains of Abraham in 1759. In 1814 and the United States at war with the British, New England’s Federalist Party refused troops to repel the enemy, contemplated a separate peace with England, and came near secession from the Union in the December, 1814 Hartford Convention.

Bernhard Thuersam, www.Circa1865.com

 

Jefferson Reflects Upon Massachusetts

“Oh Massachusetts! How I have lamented the degradation of your apostasy!

Massachusetts, with whom I went with pride in 1776, whose vote was my vote on every public question, and whose principles were then the standard of whatever was free or fearless. But she was then under the counsels of the two Adams’; while Strong, her present leader, was promoting petitions for submission to British power and British usurpation.

But should the State, once more, buckle on her republican harness, we shall receive her again as a sister, and recollect her wanderings among the crimes only of the parricide [Federal] party, which would have basely sold what their fathers so bravely won from the same enemy. Let us look forward, then, to the act of repentance, which, by dismissing her venal traitors, shall be the signal of return to the bosom, and to the principles of her brethren; and, if her late humiliation can just give her modesty enough to suppose that her Southern brethren are somewhat on par with her in wisdom, in patriotism, in bravery, and even in honesty, although not in psalm-singing, she will more justly estimate her own relative momentum in the Union.

With her ancient principles, she would really be great, if she did not think herself the whole.”

(Letter to General Henry Dearborn, March 1815; The Jeffersonian Cyclopedia, Funk & Wagnall’s Company, 1900, pg. 5)

South Carolina’s Legislature of Crooked Aliens

Like other conquered Southern States, South Carolinians at the close of the war found themselves within a Union not of their choosing, yet they we not “of” this Union. Their governor was a prisoner of war, they were under martial law, and would be soon under the rule of their former servants.  The Robert Small (or Smalls) mentioned below is credited with the theft of the steamer Planter during the war, and delivering it to the Northern fleet which was aiding and abetting the enemy, and treason against South Carolina.

Bernhard Thuersam, www.Circa1865.com

 

South Carolina’s Legislature of Crooked Aliens

“In the [postwar South Carolina] Senate Chamber sat Major Corbin . . . a captain of Vermont troops badly wounded in the war and for a time in Libby prison, he had remained in military service until the end of the war and was then ordered to Charleston in charge of the Freedmen’s Bureau.

In the same body with Major [David T.] Corbin sat Robert Small, who while still a slave had won national fame as a pilot by running the Planter out of Charleston harbor to the Federal fleet. Some of the local black folk said that he did this in fear and trembling at the mouth of a loaded pistol leveled by a braver and more determined slave, one who never shared in the fame of the Planter exploit and was big enough not to care to.

Another of those South Carolina Senators was Beverly Nash. Black as charcoal . . . he was the perfect type of the antebellum ideal of a “white gentlemen’s colored gentleman.”

Besides those three . . . Senators, there was Leslie, once a member of the New York legislature, shrewd, crooked and cynical. And there was  [B.F.] Whittemore [of Massachusetts], who had got national notoriety while in Congress by selling a West Point cadetship for money instead of the customary price which was influence.

For the rest, the Senate floor was occupied by whites and blacks . . . But there was nobody of the old romantic type of South Carolina aristocrat. At the president’s desk sat a Negro, Lieutenant-Governor A.J. Ransier, who presided with dignity . . . A year or two before he died and [he was] working as a street cleaner in Columbia . . .

In the [House] chamber at the other end of the capitol building . . . were a great body of members, mostly Negroes. The body as a whole was in a legislative atmosphere so saturated with corruption that the honest and honorable members of either race had no more influence in it than an orchid might have in a mustard patch.”

(A “Carpetbagger” in South Carolina, Louis F. Post; Journal of Negro History, Carter G. Woodson, editor, Volume 10, January 1925, excerpts, pp. 15-17)

 

A Palpable Violation of the Constitution

Clearly defined in the United States Constitution is this: “Treason against the United States, shall consist only of Levying war against them, or in adhering to their Enemies, giving them Aid and Comfort . . .” Note the word “them” – not the United States collectively, and that John Brown was convicted of treason against Virginia.  Though Lincoln’s predecessor did not agree with secession, he saw no constitutional authority to coerce a State, and knew that to wage war against a State was treason. Lincoln had no such inhibitions. The following is excerpted from a letter from Jefferson Davis to Mississippi newspaper publisher and war veteran J.L. Power, dated June 19, 1884.

Bernhard Thuersam, www.Circa1865.com

 

A Palpable Violation of the Constitution

“Dear Sir,

[From] the statement in regard to Fort Sumter, a child might suppose that a foreign army had attacked the United States – certainly could not learn that the State of South Carolina was merely seeking possession of a fort on her own soil, and claiming that her grant of the site had become void.

The tyrant’s plea of necessity to excuse despotic usurpation is offered for the unconstitutional act of emancipation, and the poor resort to prejudice is invoked in the use of the epithet “rebellion” – a word inapplicable to States generally, and most especially so to the sovereign members of a voluntary union. But, alas for their ancient prestige, [the States] have even lost the plural reference they had in the Constitution . . . Such language would be appropriate to an imperial Government, which in absorbing territories required the subject inhabitants to swear allegiance to it.

Ignorance and artifice have combined so to misrepresent the matter of official oaths in the United States that it may be well to give the question more than a passing notice. When the “sovereign, independent States of America,” formed a constitutional compact of union it was provided in the sixth article thereof that the officers “of the United States and of the several States shall be bound by oath or affirmation to support this Constitution . . .”

That was the oath. The obligation was to support the Constitution. It created no new obligation, for the citizen already owed allegiance to his respective State, and through her to the Union of which she was a member.

The conclusion is unavoidable that those who did not support, but did not violate the Constitution, were they who broke their official oaths.

The General Government had only the powers delegated to it by the States. The power to coerce a State was not given, but emphatically refused.

Therefore, to invade a State, to overthrow its government by force of arms, was a palpable violation of the Constitution, which officers had sworn to support, and thus to levy war against States which the Federal officers claimed to be, notwithstanding their ordinances of secession, still in the Union, was the treason defined in the third section of the third article of the Constitution, the only treason recognized by the fundamental law of the United States.

By all that is revered in the memory of our Revolutionary sires, and sacred in the principles they established, let not the children of the United States be taught that our Federal Government is sovereign; that our sires, after having, by a long and bloody war, won community independence, used the power, not for the end sought, but to transfer their allegiance, and by oath or otherwise bind their posterity to be the subjects of another government, from which they could only free themselves by force of arms.”

Respectfully, Jefferson Davis”

(Jefferson Davis, the Essential Writings, William J. Cooper, Jr., editor, Modern Library, 2003, excerpts, pp. 431-432)

 

For What are They Waging War?

Jefferson Davis referred to Lincoln’s proclamation of emancipation in early 1863 as affording “our whole people the complete and crowning proof of the true nature of the designs of the party which elevated to power the present occupant of the Presidential chair at Washington and which sought to conceal its purpose . . .” Davis, like others familiar with the United States Constitution, saw that only the individual States could emancipate, not the government created by the States. And waging war upon the States was an act of treason under that same Constitution.

Bernhard Thuersam, www.Circa1865.com

 

For What are They Waging War?

January 5, 1863

“Friends and Fellow Citizens . . .

I am happy to be welcomed on my return to the Capital of our Confederacy – the last hope, as I believe, for the perpetuation of that system of government which our forefathers founded – the asylum of the oppressed and the home of true representative liberty.

Anticipating the overthrow of that Government which you had inherited, you assumed the right, as you fathers had done before you, to declare yourselves independent, and nobly have you advocated the assertion which you have made. You have shown yourselves in no respect to be degenerate sons of your fathers.

Men who were bound to you by the compact which their fathers and themselves had entered into the secure to you the rights and principles not only guaranteed by the Declaration of Independence, but rights which Virginia wisely and plainly reserved in her recognition of the government in which she took a part, now come to you with their hands steeped in blood, robbing the widow, destroying houses, seizing the grey-haired father, and incarcerating him in prison because he will not be a traitor to the principles of his fathers and the land that gave him birth.

Every crime which could characterize the course of demons has marked the course of the invader. The Northern portion of Virginia has been ruthlessly desolated – the people not only deprived of the means of subsistence, but their household property destroyed, and every indignity which the base imagination of a merciless foe could suggest inflicted, without regard to age, sex or condition.

In like manner their step has been marked in every portion of the Confederacy they have invaded.

They have murdered prisoners of war; they have destroyed the means of subsistence of families, they have plundered the defenceless, and exerted their most malignant ingenuity to bring to the deepest destitution those who only offence is that their husbands and sons are fighting for their homes and their liberties. Every crime conceivable, from the burning of defenceless towns to the stealing of our silver forks, and spoons, has marked their career.

It is in keeping, however, with the character of the people that seeks dominion over you, claim to be your masters, to try to reduce you to subjection – give up to a brutal soldiery your towns to sack, your homes to pillage and incite servile insurrection.

They have come to disturb our social organizations on the plea that it is military necessity. For what are they waging war? They say to preserve the Union.

Can they preserve the Union by destroying the social existence of a portion of the South? Do they hope to reconstruct the Union by striking at everything which is dear to man? BY showing them so utterly disgraced that if the question was proposed to you whether you would combine with hyenas or Yankees, I trust every Virginian would say, give me the hyenas.”

(Jefferson Davis, the Essential Writings, William J. Cooper, Jr., editor, Modern Library, 2003, excerpts, pp. 285-287)

 

No Dissent in Lincolnian America

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

Bernhard Thuersam, www.Circa1865.com

 

No Dissent in Lincolnian America

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

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

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

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

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

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

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

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

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

 

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