Archive from May, 2022

Trusting Congress to Ratify Unconstitutional Actions

Lincoln was a one-term Whig US congressman from Illinois before assuming the presidency with a mere 39% of the popular vote, and not even being on the ballot in many States. He had little knowledge of the US Constitution, no foreign policy awareness or experience, and led a purely sectional party of former northern Whigs and anti-Catholic Know-Nothings, Transcendentalists and abolitionists. Despite Southern unionists imploring him to abandon Fort Sumter to allow a cooling-off period to defuse the crisis and stop other States from seceding, he consciously lit the fuse of war which cost the lives of a million Americans and ended the American republic.

Trusting Congress to Ratify Unconstitutional Actions

Eighty days was the interval between Lincoln instigating the confrontation at Fort Sumter and the regular assembling of Congress in July, providing the new president with a virtual monopoly of emergency powers. On April 15th 1861, in language reminiscent of Washington’s response to the Whiskey Rebellion, Lincoln declared an “insurrection” to exist, announced that federal laws were being opposed in seven States “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, by the powers vested in the marshals of the law,” and on his own claimed authority called forth the militia of the States to the number of 75,000 to “suppress said combinations.”

This was how our “civil war” commenced and without a declaration by the only entity vested with the constitutional authority to do so. Though the States which declared independence from the US Constitution fully considered their actions legal and peaceable, Lincoln’s political party and those supporting his actions viewed this independence movement as null. They assumed a defensive attitude with a readiness to strike in retaliation for any act of resistance to what they saw as the national authority – which they viewed the withdrawn States as still a part of.

Author J.G. Randall wrote that “Lincoln was to take other war measures. He issued on his authority two proclamations of coastal blockade by which he could continue to collect tariffs, which was the lifeblood of the US treasury.  The second applied to Virginia and North Carolina, the latter of which was still a part of Lincoln’s union – and an act of war against a State.

He decreed the expansion of the regular army on his own authority, calling forth on May 3rd recruits of the regular army beyond the total then authorized by law – any increase is a congressional function.  Acting independently and not waiting for the constitutionality of his acts to be questioned, he advised Congress in July that “whether strictly legal or not, were ventured upon under what appeared to be a popular demand and public necessity, “trusting that Congress would readily ratify them.”

(Civil War and Reconstruction, James G. Randall, DC Heath & Company, 1937, pp. 360-361)

Chief Justice Taney and Dred Scott

What follows is an abridgment of an article written by a descendant of Chief Justice Taney to clarify the legal question presented and facts considered. Taney was 12 years old when Washington died and lived long enough to see the Constitution overthrown by military force. It is said that his arrest was ordered for defying Lincoln’s suspension of habeas corpus.

Chief Justice Taney and Dred Scott

Chief Justice Roger B. Taney (pronounced “tawney”), 1777-1864, is mostly known for his decision in the Dred Scott v. Sanford case in 1857. Largely forgotten is his 30 years on the bench of the Supreme Court, and his steadfast understanding that the Constitution is a compact among sovereign States. In his view, most matters of importance were the domain of States, not the federal government, and the Court was to interpret the Constitution according to the original constitutional meaning when it was first adopted.

The primary question the Court was to decide in the Dred Scott case was whether black people in the United States were “citizens” of the United States. It must be recalled that in the antebellum United States people were first citizens of the individual States, and by virtue of that, the United States.

Taney’s Court was to determine whether people of African descent were actual members of the American political community under the original intent and meaning of the Constitution. His study and understanding reflected that the United States in 1789 were primarily white, Anglo-Saxon people and black people were not part of what was an original political creation of Europeans. The racial viewpoint of the latter toward African people was primary in his consideration.

He and his Court saw that in all States, North and South, laws restricted relations between the white and black races because it was widely believed that “a perpetual and impassable barrier was intended to be erected between the white and black race.” Clearly, this is in general an accurate assessment of 17th and 18th century colonial law.

The Court also explored whether the Declaration of Independence proposition that “all men are created equal” altered the legal and social status of black people in America. Taney argued that if understood in its proper historical context where blacks and whites occupied different legal and social spheres, “it is too clear that black people were not intended to be included and formed no part of the people who framed and adopted this Declaration” in 1789.

It was clear then as it is now, that the Declaration of Independence stood only for the proposition that the American colonists, as Englishmen, had the same rights to self-determination and self-government as their British kinsmen. The Founders of course provided for future amendments to their work, but Taney and his Court were considering this legal question in 1857.

Taney’s Court also investigated whether the Constitution itself had changed the status of black people so as to make them part of the American political and legal community. Taney noted that as the Preamble declared that the United States was formed “by the people” – which was those who were members of the different political communities in the several States forming the United States. Taney concluded that as most States, North and South, had long distinguished between blacks and whites in terms of social and legal rights, and the Constitution itself implicitly distinguishing between the races in its Migration and Importation clause (permitting the abolition of the slave trade after 1808) and the Fugitive Slaves clause, black people were simply not intended as part of “the people” described in the Constitution.

As Taney reviewed federal statutes to further divine the Founders’ minds in 1789 and what they considered “the people of the United States,” he found two federal laws passed within a few years of ratification. One was the first naturalization law of 1790, which provided that only “free, white persons” could become citizens and therefore this was the political community. The other was the first militia law of 1792, which required the enrollment of every “free, able-bodied white male citizen.”

Though one could contest Chief Justice Taney’s interpretations at that time, eminent historian Carl Brent Swisher wrote in his well-respected biography of Taney that his decision was based upon an “accurate portrayal of relations between the two races in communities where both lived in considerable numbers” at the time it was written.

Thus, investigating this important question in 1857, Chief Justice Taney concluded that people of African descent were not citizens of the United States, and therefore the Dred Scott case did not fall under federal jurisdiction. To rule otherwise, Taney warned, “would require that the Court give to the words of the Constitution more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”

Such a “liberal construction” would exceed the Supreme Court’s authority.

Emancipation and Colonization

The antebellum idea of compensated emancipation for slaves never gained traction as the North would not agree to help fund the repatriation of Africans’ they themselves had grown wealthy importing to the Americas for 100 years or more. Abraham Lincoln was an avid proponent of colonization once his armies overran the South and created refugees, knowing the North would not accept them flooding northward. Lincoln’s Caribbean colonization schemes are mentioned below and further detailed in the soon-to-be-released “Rather Unsafe for a Southern Man to Live Here: Key West’s Civil War,” by Bernhard Thuersam.  www.shotwellpublishing.com.

Emancipation and Colonization

Hugh Talmadge Lefler and Albert Ray Newsome well-explained antebellum views toward slavery in their History of North Carolina (Chapel Hill, 1954). They wrote that slavery was the most serious antebellum controversy between North and South with people in both sections criticizing it as a moral, economic and social evil. But importantly, the United States Constitution recognized those held to labor and left the States with complete authority over the question within their own borders. Though every Northern State took action to begin gradual emancipation by 1804 – with many selling their slaves southward – no Southern State followed suit because of economic, social and racial considerations.

Lefler and Newsome wrote that “Many Southerners opposed slavery and realized its dangerous possibilities, but most of the early Southern opposition to the slavery was conditioned upon the “antislavery” idea of gradual emancipation to owners, and colonization to Africa or elsewhere. The colonization plan, sponsored by various manumission societies, proved impractical, though Liberia on the African coast was begun as a result of a few thousand Negroes being colonized there by the joint efforts of these societies and acts of Congress.”

The question of colonization was on the mind of Abraham Lincoln once his 1861 invasion destroyed Upper South plantations and produced numerous black refugees.  It was Lincoln’s early intention to emancipate by decree through constitutional amendments and compensating owners – but this failed to gain support in his fractious party.

Author Michael J. Douma has written extensively of Lincoln’s colonization plans and noting that “Historians have long known that in the summer of 1862 Lincoln announced his intention to negotiate with foreign powers concerning the colonization of freedmen abroad.” For the next two years federally-funded initiatives arose to settle freedmen in Chiriqui [Panama] and Haiti – in addition to the British Honduras, Guiana and Dutch Surinam. These talks were quite serious and continued even after the war, anticipating the transport of freedmen to these islands as laborers.

The Danes also expressed interest in colonizing unwanted contrabands to work their plantations on St. Croix, now the US Virgin Islands. In 1862 Seward signed an agreement with the Danes to take all captured aboard slave ships in the Atlantic to St. Croix to work as plantation labor despite Danish acknowledgement that workers on the island would not find conditions much different from previous slavery, but they would be technically “free.” To facilitate the process of removal the Lincoln authorized Danish ships to sail down the US east coast to recruit freedmen. The Danish minister viewed South Carolina as a highly fertile recruiting ground which was seconded by Secretary of State Seward. The Dutch were also fascinated with freedmen and actively sought them as labor for their colony of Suriname on South America’s northeast coast.

Lincoln and Seward were not the only proponents of colonization as they were ably supported by leading Republicans Charles Sumner, Francis Blair, Preston King and Benjamin Wade. Though supportive before 1863, all became aware of the value of black troops used to invade the South as white volunteers became hard to find or had to be paid astronomical financial bounties to enlist. Few black men stepped forward and many had to be coerced, but by war’s end the colonization to the Caribbean regained speed.

 

Sharp Gettysburg Farmers

After the carnage and devastation experienced by both sides in early July 1863, the silence of the guns on July 4th allowed Northern soldiers the opportunity to view the result of battle. They quickly discovered the depth of the local farmers’ patriotism as the latter saw an opportunity to profit from the soldiers’ misery.

Sharp Gettysburg Farmers     

“Most of the thrifty, compulsively orderly farm families of German ancestry had, until now, viewed the sectional conflict with indifference, a struggle over issues that were foreign to their interests. When, after two years, the war finally intruded itself upon their lives, it entered with a destructive force few parts of the North had yet experienced. For miles about, their carefully tended fields had been stripped of laboriously built post and rail fences, all the greyed wood having gone to fires or barricades.

There was not a grazing animal to be seen. The low stone walls dividing the properties in the area, products of countless plowings by generations of frugal farmers, had been broken down by shot and shell. Once rich fields wheat and grain had been trampled to worthlessness by masses of farm-boys turned soldiers who could fully appreciate the extent of the damage they were doing. The ground itself was furrowed and scarred by the wheels of caissons and gun carriages. Once symmetrical orchards had been made incongruous; some trees had been reduced to stumps while on others fractured limbs with crumpled dead leaves hung limply.

Regardless of what high principles the Union soldiers may have been fighting for on their soil, they were being regarded by some of the ruined farmers as the source of financial devastation, and they were not anxious to comfort the soldiers in any way.

One officer of a New York regiment complained that ‘a well-to-do farmer near us refused us straw for our men . . . not a man or woman in the vicinity offered a hand to help or drop of milk for the poor sufferers.’ A Northern surgeon said ‘I have yet to see the first thing brought in for the comfort of the wounded. Some farmers brought in some bread which they sold for 75 cents a loaf. The brave army that has defended this State surely deserves better treatment.’

The morning after the epic Little Round Top battle a committee of farmers confronted a Northern major of the 155th Pennsylvania and demanded payment for straw taken for field hospitals. They were driven away with threats of arrest ‘for their disloyalty as well as their inhumanity.’ Perhaps the meanest offenses were being committed by the local farmers who removed the handles and buckets from their wells to prevent the soldiers from reaching water.

What particularly offended a Northern artillery colonel was the hundreds of people who had come “in their wagons to see the sights, to stroll over the ground and gaze and gape at the dead and wounded.”

(Debris of Battle: The Wounded of Gettysburg. Gerard A. Patterson. Stackpole Books, 1997, pp. 53-55)