Circa1865

Below, Alexander Stephens reviews the constitutional dilemma Abraham Lincoln faced when formulating his plan to resist the American South’s decision for political independence from the industrialized north.

Congress Alone Has the Power

“[Mr. Lincoln had] sworn to “preserve, protect and defend the Constitution” and “faithfully to execute the office of President of the United States.” This oath imposed a solemn obligation on him not to violate the Constitution, or to exercise, under color of his office, any power not conferred upon him by that instrument. He was required to see to the faithful execution of the laws of the United States, as passed by the Congress of States, and as construed by the Judiciary.

He said in the first of these proclamations that he made a call for the militia “in virtue of the power vested in him by the Constitution and the laws.”

But no such power was vested in him by the Constitution, nor was there any law authorizing him “to set on foot” the naval blockade as he did in the second of these proclamations. He said he did this in pursuance of law, but there was no such law.

In reference to the first proclamation, Congress alone has power, under the Constitution, to declare war and raise armies. Congress alone has the power to provide by law, for calling out the militia of the several States.

The President under the Constitution has no power to call out [State] militia to suppress an insurrection in a State, except “on application of the Legislature or the Governor, when the Legislature cannot be convened.” This was one of the provisions of the United States Constitution which Mr. Lincoln swore to “preserve, protect and defend.”

That clause of the Constitution is amongst the mutual covenants between the States guaranteeing to each a “Republican Form of Government” and protection against invasion and domestic violence.” This contemplated and authorized no interference whatsoever on the part of the Federal authorities with the internal affairs of the several States, unless called upon for that purpose, unless specifically requested by a State.

On this point, Mr. Stephen Douglas, in his speech of March 15^th, in the U.S. Senate, in the policy of withdrawing Federal troops from the forts in seceded States, was so clear, conclusive and unanswerable. Mr. Douglas said:

“But we are told that the President is going to enforce the laws in the seceded States. How? By calling out the militia and using the army and navy!? These terms are used as freely and flippantly as if we were in a military government where martial law was the only rule of action, and the rule of the Monarch was the only law to the subject.

Sir, the President cannot use the Army or the Navy, or the militia, for any purpose not authorized by law; and then he must do it in the manner, and only in the manner, prescribed by law. It must be requested by the State’s legislature, or Governor.”

(A Constitutional View of the Late War Between the States, Vol. II. Alexander H. Stephens Sprinkle Publications, 1994 (original 1870), pp. 397-402)

In late-March 1861 it was believed by most Americans in the South – even those devoted to political independence from the north – that the policy of secession was the surest way of securing a redress of grievances from northerners – and hopefully bring them back to respecting constitutional principles. Lincoln’s proclamations of war came instead, backed by troops from northern States.

A Northern Conspiracy

“In late March 1861 the understanding in Washington was that the newly inaugurated president had determined to withdraw all United States forces from the limits of the newly formed Confederate States.

It was at this juncture, however, that seven Northern Governors hastened to Washington, and then and there organized their “Conspiracy,” and by appeals to Mr. Lincoln, and tendering to him their organized military forces, caused him to change his policy and to adopt theirs, which aimed at an entire overthrow of the Constitution of the United States and the federative principles of government upon which it was based.

It was by and through its active agency that Mr. Lincoln’s policy was changed, though not communicated to the Confederate States commissioners who were left with peaceful assurances from Lincoln’s Secretary of State, Seward.

(A Constitutional View of the Late War Between the States, Vol. II. Alexander H. Stephens Sprinkle Publications, 1994 (original 1870), p. 354)

It became clear in the postwar that both Grant and Lincoln were responsible for the excessive mortality in the South’s prison camps, especially Camp Sumter – aka-Andersonville. But northern politicians still “waved the bloody shirt” in 1876 with James Blaine of Maine claiming Jefferson Davis “was the author, knowingly, deliberately, guiltily, and willfully, of the gigantic murders and crimes at Andersonville.” Benjamin Hill of Georgia replied to him: “If nine percent of the [northern] men in Southern prisons were starved to death by Mr. Jefferson Davis, who tortured to death the twelve percent of the Southern men in Northern prisons?”

Prior to his release from postwar captivity, former Vice-President Alexander H. Stephens of Georgia was asked himself about the conditions at Camp Sumter, also known as the Andersonville prisoner of war camp.

The Horrors of Andersonville

“Regarding treatment of prisoners at Andersonville and other places, which was brought up, I said that the matter had caused me deep mortification and pain. From all I had heard, the sufferings of prisoners were terrible. I had no idea, however, that these sufferings were by design or system on the part of Mr. Davis and other authorities at Richmond. Something akin to what might be styled indifference or neglect toward our own soldiers on the wounded and sick lists I have witnessed with distress. To this subject I have given a great deal of attention.

I had never seen in Mr. Davis any disposition to be vindictive toward prisoners of war. I had no idea that there was any settled policy of cruelty on his part to prisoners.

In all my conversations with him on the subject of prisoners, he put the blame of non-exchange on the authorities at Washington: he always expressed earnest desire to send home all we held upon getting in exchange our men equally suffering in northern prisons. Our prisoners, it was said, were treated as well as they could be under the circumstances; those at Andersonville were crowded into such a miserable pen because we had no other place in which to secure them. They had the same rations as our soldiers, who, to my own knowledge, suffered greatly themselves from food shortages, not only in our hospitals, but also in the field.

The advice I had given was to release all our prisoners on parole of honor, whether the authorities at Washington exchanged theirs or not. I had advised such a course as one of humanity and good policy.

Against it was urged that if we were to release all our prisoners, our men would be held and treated not as prisoners of war but as traitors and would be tried and executed as such; our authorities must hold northern soldiers as hostages for ours.  And I could not, after looking over the whole matter, come to any other conclusion than that some blame rested on the authorities at Washington.

War is at best a savage business; it never had been and never would, perhaps, be waged without atrocities on all sides. Hence, my earnest desire during the late conflict to bring about pacification by peaceful negotiations at the earliest possible moment.”

(Recollections of Alexander H. Stephens: His Diary While Imprisoned. Myrta Lockett Avary, ed., LSU Press, 1998 (original 1910), pp. 444-446)

Below, Alexander Stephens explains the original intent of citizenship of the United States being first State citizenship. Stephens wrote the following from a Fort Warren jail cell after his arrest in 1865 for an unknown crime.

Citizenship as Intended

“Eight weeks today [July 6, 1865] I have been a prisoner; six weeks in this place; all without the slightest intimation of the cause. Seized by an armed force, sent here by an armed force, kept in close confinement, guarded by an armed force, deprived of all means of appealing to judicial power for redress; and yet Eagle-orators and reverend rhetoricians scream and shout about the glorious freedom we Americans enjoy.

PM – [A newspaper] 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 State 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 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.

I was first struck with these on the annexation of Texas. How could her representatives, it was asked, take their seats in Congress, not having been citizens of the United States for the term of years required by the Constitution? The answer, upon the true principles of the Constitution and the only citizenship it contemplates, was plain: members and senators could not present themselves until the State was itself one of the United States; then, whoever might present himself as a member, having been seven years a citizen of Texas, would, in the terms and meaning of the Constitution, have been seven years a citizen of the United States, so constituted.”

(Recollections of Alexander H. Stephens: His Diary While Imprisoned. Myra Lockett Avary, ed., LSU Press, 1998 (original 1910), pp. 312-313)

Gen. Henry Halleck told his invasion forces in 1861 that Southerners “have been warned that we come to oppress and plunder. By our acts we will undeceive them.”

In November 1861, Gen. John Dix prepared his invasion of Virginia’s eastern shore and spoke of “giving [Virginians] them the strongest assurances of kind treatment and protection . . . they may be gained over without bloodshed.” Dix added that Virginians “have got it in their heads that we want to steal and emancipate their Negroes.” Despite these pronouncements of deliverance from despotic “rebel” rule, the reality told a different story.

A colonel of the 20^th NY Volunteers at the Outer Banks of North Carolina wrote his commanding officer: “I regret to be compelled to state that the conduct of the men and some officers of my command has been that of vandals.” The descent into total war had begun.

Not a War of Oppression

“Few northerners sought the overthrow of slavery, for although most considered the institution morally corrupting and economically stifling and wanted to halt its spread, they deemed blacks unfit for freedom in a republic.

The northern-dominated U.S. Congress of July 1861 affirmed the narrow goals of the Crittenden Resolution, which it passed with hardy a dissenting vote. It declared “that this war was waged, on our part, in any spirit of oppression, nor for any purpose of conquest or subjugation, nor purpose of overthrowing or interfering with the rights or established institutions of these States, but to defend and maintain the supremacy of the Constitution and to preserve the Union, . . . as soon as these objects are accomplished the war ought to cease.”

These last twelve words reflected a fear that a prolonged war might rage out of control, burst its bonds and devour the very ideals and institutions it was meant to preserve. Lincoln himself worried that an extended conflict would “degenerate into a violent and remorseless revolutionary struggle.”

(When the Yankees Came: Conflict & Chaos in the Occupied South, 1861-1865. Stephen V. Ashe. UNC Press, 1995, pp. 25-27)

On April 19, 1861, Lincoln began his blockade of Atlantic and Gulf of Mexico ports to deny imports to Americans in the South. This included much-needed medical supplies which would have saved the lives of thousands of civilians, young and old. Below, President Davis’s wife Varina writes of an imprisoned soldier’s fear for his family at home.

America’s Home Front, 1861-1865

“Our soldiers fought for the love they bore for their country, though it was a desperate fight. They had to contend against far more dreadful foes than the federal army. They fought cold, heat, starvation, and the knowledge that their families at home were enduring the same privations.

One poor fellow at Johnson’s Island, Ohio’s prison camp, who was dying of the want endured there, wrote and asked if I might write to his wife of his last hours and give her his love. “I have a letter from my wife,” he said. “She walked my little girl – who was just a month old when I saw her last – up and down, up and down, tried willow-tea and every other remedy she could think of for the baby’s chills; but the doctor said nothing but quinine could save her. And Madam, my wife did not have that so my three-year-old baby died, and now I am dying and my poor, starving wife will have nothing to comfort her. But, he wrote, “If our folks can remain freemen, it is alright.”

This spirit of devotion was manifested by the soldiers and officers of the Confederate States of America everywhere, and when their hearts failed them from brooding over the needs of their helpless families, the women choked back their tears, tried to forget their bare feet, their meagre fare, their thousand alarms by night, and all the grinding want that pressed them out of their youth and life, and wrote of the cheer our victories gave them, of their prayers for our success, and their power to resist unto the end.”

(Jefferson Davis: A Memoir by His Wife, Volume II. Varina Davis. Nautical and Aviation Publishing Company of America. 1990 (originally published 1890), pp. 495-496)

Grant took command of Lincoln’s Army of the Potomac on March 17, 1864, now massed on Virginia’s Rapidan River and numbering 141,160 men. To oppose this invasion of Virginia, General Robert E. Lee’s strength was 50,403 muskets. His cavalry, artillery and supplies were all depleted, and his numerical strength in all arms did not exceed 64,000 as Grant began his march southward on May 4, 1864.

Grant’s Theory of Attrition

“General Grant’s theory of war was, “to hammer continuously against the armed force of his enemy, until, by mere attrition, there should be nothing left.”

Military genius, the arts of war, the skillful handling of troops, superior strategy, the devotion of an army of men, the noble self-denial of commanders, all must give way before the natural forces of “continuous hammering” by an army with unlimited reinforcements, an inexhaustible treasury, a well-filled commissariat, and all directed by a unanimous people.

The work of Lincoln’s war department was based upon the need for an army of a million men. Vast stores were accumulated. The US Congress, with reckless prodigality, continued to pass the most extravagant appropriations for organizing armies, and for maintaining the countless forces which constituted an invasion so vast, that it was hoped it would be invincible.

At the Wilderness, Grant’s onslaught overpowered two divisions and drove them back until Lee himself rode among his troops to rally them and reestablish his lines. In early June, Grant ordered an assault at Cold Harbor which was repelled with extraordinary slaughter, though he ordered a second attack in the afternoon which his men sullenly refused to obey.

Grant then pivoted toward the James River below Richmond to surprise and capture Petersburg, but was thwarted by Generals Beauregard and Wise, who had been reinforced with local militia and home guards. At this point Lee’s aggregate strength had increased to 78,400 men with which to oppose Grant, who had been reinforced and was now up to 192,160 troops.

Mr. Swinton, in his ‘History of the Army of the Potomac,’ estimates Grant’s losses at the Wilderness, Spottsylvania, North Anna and Cold Harbor battles at “above 60,000 men’ which included 3,000 officers, ‘while the loss of Lee did not exceed 18,000 men, of whom few were officers). This result would seem an unfavorable comment upon the choice of route by Grant, as McClellan two years prior attained the same point with trifling losses.

Grant had achieved no signal victory nor important success to offset his losses and had not defeated Lee on any of the campaign’s battlefields. The Army of Northern Virginia, not reinforced until it had reached Hanover Junction, and then only by 9,000 men, had repulsed every assault, and in the final trial of strength with a force vastly superior, had inflicted upon the enemy, in about an hour, a loss of 13,000 men.”

(Jefferson Davis: A Memoir by His Wife, Volume II. Varina Davis. Nautical and Aviation Publishing Company of America. 1990 (original published 1890), pp. 487-493)

The State of Tennessee established Fort Pillow in 1861 on the eastern bank of the Mississippi River to prevent the passage of northern warships. The Confederate States government later fortified it, but in early 1864 abandoned it to northern troops.

Fort Pillow’s So-Called “Massacre”

“Two ridges gave Confederate sharpshooters complete command of the fort’s interior, and General Forrest decided to send up a formal demand for surrender. The enemy commanding officer was notified that he was surrounded, and that, “if the demand was acceded to, the gallantry of the defenses already made would entitle all its garrison to be treated as prisoners of war.

An answer, after considerable delay, was brought up from the fort, written in pencil on a soiled scrap of paper, without an envelope. It read: “Your demand does not produce the desired effect.” General Forrest read it and hastily exclaimed: “This will not do, send it back and say to Major Booth that I must have an answer in plain English – yes or no.”

Shortly the messenger returned with “no.” Forrest immediately planned to make the assault. The bugle sounded the “charge,” and the Confederates, with a rush, cleared the parapet and swept with their fire every face of the work. General Forrest’s men drove the enemy toward the river, leaving their flags flying, but they turned and fired as they ran.

Now thoroughly panic-stricken, many of the enemy threw themselves into the river and were drowned; others, with arms in their hands, endeavored to make good their escape in different directions but were met by flanking parties of the Confederates and either killed or captured. Fortunately, the firing instantly ceased after General Forrest rode into the fort and cut down the garrison flag.

On the Confederate side, 14 officers and men were killed and 86 wounded. Under a flag of truce, an enemy steamer came to the landing place as Forrest allowed parties to come ashore to look after their dead and wounded, to bury the former and remove the latter to the transport. Of the enemy wounded, there were 61: 34 whites and 27 colored men, according to the reports of the Federal surgeon at the Mound City, Illinois hospital.

There were taken as prisoners of war, 7 officers and 219 enlisted men – 56 of whom were colored and 163 white men without wounds, which, with those wounded, make an aggregate of those who survived, exclusive of those who may have escaped, some 300 souls, or fully 55 percent of the entire garrison. Those who survived unhurt constituted forty percent.

This was the so-called massacre of Fort Pillow.”

(Jefferson Davis: A Memoir by His Wife, Volume II. Varina Davis. Nautical and Aviation Publishing Company of America. 1990 (originally published 1890), pp. 484-485)

“The Greeks and Romans had no standing armies, yet they defended themselves. The Greeks by their laws, and the Romans by the spirit of their people, took pains to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige them to repair to the standard of his country whenever that was raised. This made them invincible; and the same remedy will make us so.”  Thomas Jefferson to Samuel Cooper, March 1814

Fear of Standing Armies

After the HMS Leopard seized American sailors in mid-1807 amid deteriorating relations with England, Congress began debating an increase in the US military. Though Thomas Jefferson’s administration had severely cut troop numbers in 1802, in 1808 the strength in men was only 6500.

“In 1811, Secretary of War William Eustis asked for 10,000 men to be added to the regular army. Senator William Branch Giles, a Virginia Democrat but violently anti-Madison, proposed 25,000 instead of 10,000.

Now began a lively debate in Congress between supporters and detractors of standing forces. Supporters insisted that a regular army of 30,000 could not possibly endanger civilian control of the military.

Detractors, on the other hand, drew upon history to prove that standing armies had more often than not overthrown free governments. Some detractors wanted to see the regular army abolished, for them the country would be forced to engage in nothing more than defensive military operations.

Neither geographical origin not party seemed wholly to govern the way men voted on the choice between regulars and militia. Federalists from Massachusetts and Connecticut reliance on militia because of the excellence of their own citizen soldiery, while Federalists from most other States usually spoke in favor of regulars. New York representative Peter B. Porter favored both types; he called the militia the shield of the nation and regulars the sword. His metaphor displeased most Democrats who did not want the nation brandishing a sword.

In the end all Senate Federalists joined with some Democrats to enact Giles’ augmentation – with Henry Clay and Porter pushing the Senate bill through the House, becoming law on 11 January 1812. The result was 10 regiments of infantry, 2 of artillery, and 1 of light dragoons – though the ranks were never more than half-filled. The new law made provision for two major-generals and five brigadiers, but not for a general-in-chief to give professional advice to the civilian secretary of war.

Twice in four years, in 1808 and again in 1812, Congress had tripled the size of the regular army on paper. One month after the second tripling it gave the President permission to alert 50,000 volunteers, appropriated $1 million to support them, and if called into federal service, to serve for one year.

Major-General Henry Dearborn requested militia from Connecticut in June 1812, got he got instead a note from Acting-Governor John Cotton Smith. The State council and concluded that the request was unconstitutional on two grounds: (1), the President had not indicated that there existed any of the three exigencies stipulated in the Constitution – an invasion, an insurrection, or a combination to break the laws – and (2), Connecticut militia could not be placed under the immediate command of federal officers when proper State officers were already designated for them.

The US Secretary of War, entering the dialogue, insisted that an invasion did exist or was imminent. The governor countered that neither a declaration of war nor the nearby cruising of a hostile fleet constituted an invasion or even the threat of one. He would send no State troops.”

(The War of 1812. John K. Mahon. Da Capo reprint, University of Florida Press, 1972, pp. 3-4; 32)

The author below writes that “Most Puritans sought a homogenous society that made any kind of stranger generally unwelcome,” and “their efforts to expunge untrustworthy members with white skin were legendary.” Those with white complexions from different cultures posed a “complicated dilemma” for Puritans, but the vast gulf between their own and Indian and African cultures made the latter unwelcome except as slaves.

Puritan Slaveholders

“Slavery began in New England during the first years of settlement in Massachusetts, and thus, the Puritans learned how to be slaveowners immediately on arrival. As white New Englanders established their new settlements, they enslaved Indian populations both to control them and draw upon them for labor. Although John Winthrop did not immediately see Indians as slaves, it dawned upon him that they could be used as such.

Winthrop recorded requests for Indian slaves both locally and in Bermuda. Wars with the Narragansett and Pequot tribes garnered large numbers of slaves, and the trading of Indian slaves abroad brought African slaves to Massachusetts shores. In 1645, Emmanuel Downing, Winthrop’s brother-in-law and a barrister, welcomed a trade of Pequot slaves for African slaves.

However, the enslavement of Indians had a different tenor than the enslavement of Africans. The indigenous slaves represented an enemy, a conquered people, and a great threat to Puritan society. African slaves represented a trade transaction, laborers without strings attached. Moreover, Indians slaves were part of peace negotiations and control of the region. They served as collateral with which to negotiate with local Indian leaders. Further, Puritan colonists could expel troublesome Indians out of the colony or simply control them as slave property.”

(Tyrannicide. Forging an American Law of Slavery in Revolutionary Massachusetts and South Carolina. Emily Blanck. UGA Press, 2014. p. 12-13)