Circa1865

Martial Law is the Absence of Law

A review of the martial law imposed upon the island of Key West 1861-1865 was recently presented by a local college history teacher, and as a part of the North’s comprehensive military strategy during the Civil War. The audience was a local Civil War Roundtable (CWRT) group.

The lecturer noted the military takeover of the civilian government on the island in mid-January 1861 as the local commander, Capt. James Brannan surreptitiously barricaded his 44 men in the nearly completed Fort Zachary Taylor and turned its guns on the town. Overnight, the US military’s local friends and neighbors became an enemy to be treated with suspicion and contempt. Now fearing bombardment of their homes from the nearby fort, the residents became prisoners in their homes.

The reason cited for Brannan’s warlike action was overhearing “secession” talk among the residents as well as Florida’s recent decision to formally withdraw from the United States federation and become an independent State. Florida was to remain independent until it formally voted to join the Confederate States of America on April 22, 1861.

The arrival in March 1861 of more Northern troops increased armed patrols roaming the town and surveilling citizens. Arbitrary arrests were common, and Fort Taylor became an American bastille to hold prisoners of conscience. Locals, especially merchants with inventories to sell, sought favor with the military as willing informants, reporting on anyone complaining of military rule. Elected officials who disagreed with the military faced arrest and confinement, and new elections of approved candidates were held under armed supervision. Those considered “dangerous secessionists” were deported to the mainland.

What Capt. Brannan accomplished with his unilateral action, and unfortunately not pointed out by the lecturer, was to wage war against a State which is the very definition of treason in the US Constitution – Article III, Section 3. Though Brannan was applauded by his fellow officers and eventually promoted for his act, this does not absolve him of treason.

It was highly likely that Brannan was emulating Major Robert Anderson at Charleston as news of the Fort Sumter seizure could have reached him at Key West in early January. As Anderson suffered no adverse consequences for his fort seizure, Brannan perhaps saw a green light to do the same but should have been more circumspect as he certainly was aware that John Brown was hung in 1858 for waging war against Virginia – the crime being treason. Noteworthy is that Brown was tried and convicted in Virginia, where he committed his crime.

Though this speaker outlined how the island was placed under military rule, no adequate or honest discussion was provided regarding how or why military rule had suddenly materialized, how it was justified under American law, or who specifically ordered it. Martial law is generally considered to be the absence of law with arrests and detentions made at the discretion of the military commander, or those commanded by him. Missing was any explanation of how easily Northern commanders could ignore habeas corpus which was so deeply rooted in Anglo-American jurisprudence. But importantly, as Lincoln ignored the Constitution and approved the repressive actions of those like Brannan, it only encouraged more violations of the law.

The seizure of Fort Taylor came at the whim of a local military commander who was sworn to uphold the United States Constitution – and who should have clearly understood the definition of treason. Though simplistically following orders to protect the fort he was charged with commanding, the withdrawal of the State of Florida and its relationship with the United States government at Washington took precedence. After being officially advised of Florida’s decision to formally declare independence, and lacking any reason to remain on the island, which was no longer part of the United States, Capt. Brannan should have sought Florida officials to provide him with receipts for all equipment left behind before departing with his command. Though he likely would have been court-martialed for doing this, he would have been true to his oath to support the United States Constitution.

The above indicates that there is more than one viewpoint regarding this particular topic, and a more well-versed history teacher should have been able to present all credible perspectives beyond their own. In this particular case, the audience deserved a far better explanation of how military rule quickly overwhelmed a peaceful American town. The listeners were unfortunately left with a partial and limited view of this important and most revealing topic.

(For more information on this topic, see: “Key West’s Civil War: Rather Unsafe for a Southern Man to Live Here.” John Bernhard Thuersam – Shotwell Publishing and available on Amazon)

On April 12, 1864, Fort Pillow, located north of Memphis on the Mississippi River, was surrounded by some 1,500 troops under Gen’s. Nathan Bedford Forrest and James Chalmers. After sending an ultimatum to surrender or suffer “no quarter” and the enemy rejecting capitulation, Forrest’s men attacked and caused most of the enemy’s 600 soldiers to flee into the river. As northern colored troops were half of the fort’s garrison, they suffered great loss along with their white counterparts, and the usual cries of “massacre” were heard from northern reporters anxious to sell newspapers to a gullible public. The Radical Republicans were also quick to establish a congressional committee to investigate Fort Pillow for political purposes.

This pattern was repeated late in the war as the northern public was fed atrocity stories of Georgia’s Andersonville prison stockade. Missing from the stories were the pleas of President Davis and other Southern leaders for prisoner exchanges, including safe passage for medical supplies and food to sustain the inmates. These were all refused by Grant, with Lincoln’s approval.

Conquest, Not Union

“What exactly did the [Committee on the Conduct of the War] uncover and how objective was its investigation? Critics have assumed that the committee deliberately exaggerated Southern atrocities to smear Forrest’s reputation, inflame public sentiments, and serve its own narrow partisan agenda.

The committee’s most thorough historian, T. Harry Williams, for instance, argues that Benjamin Wade used this investigation, as well as previous atrocity reports, as a means to create a consensus for an even more radical reconstruction. By deliberately exaggerating Rebel brutalities, he would cause the public to support a reconstruction policy that would treat the South as a conquered territory.

There is little doubt that the issue of reconstruction was on the minds of committee members and other Republicans during the Fort Pillow investigation. George Julian, chairman of the House Committee on Public Lands, was already busy sponsoring legislation to confiscate the large holdings of Rebel planters and redistribute them to veterans of the Union armies, both white and black.

In remarks to the House of Representatives shortly after Fort Pillow, Julian castigated the Confederates as “devils” and argued that the [alleged] massacre provided additional reasons to support the program of confiscating [Southern property].

Even before the war, there were many in the North who viewed the South as backward and in need of radical reordering along the outline of Northern free labor institutions. The war accelerated such beliefs. “The war is quickly drawing to an end,” the Continental Monthly predicted in the summer of 1862, “but a greater and nobler task lies before the soldiers and free men of America – the extending of civilization into the South.”

In formulating its Fort Pillow findings, the committee reflected Northern opinion as much as it sought to shape it.”

(“These Devils Are Not Fit to Live on God’s Earth”: War Crimes and the Committee on the Conduct of the War, 1864-1865”. Bruce Tap. Civil War History – A Journal of the Middle Period, John Hubbell, ed. Kent State University Press, June 1996, Vol. XLII, No. 2, pp. 121-122)

Yankees in Georgia

“I . . . reached Halifax, my sister’s place, in two and a half hours at 9AM. She unlocked the door, looked at me with a terrified air [and] all overwhelmed with distress for my danger, for they too believed the Yankees were still in the county.

Then followed the sad recital of their sufferings and losses at the hand of the Yankees. The evidences were on every side. Broken trunks, smashed bureaus, overturned wardrobes – everything topsy-turvy just as the Yankees had left them. No use to put things in order to be again disturbed. But worse, far worse than all the mental agony from fear of personal violence and insult.

The Yankees had entered the house every day for nearly two weeks. Every separate gang ransacked the house afresh, entering every room and taking whatever they desired. The mental suffering of these three ladies and of my child only fourteen-years-old during these two weeks can never be told.

As soon as I could get a word in edgewise, I told them my reasons for believing the Yankees had left the county, but at the same time my grave fears that they were returning or had already returned. If they desired to go out, they must do so immediately, [and] the wagons would be here tonight. Anything was preferable to a repetition of the dreadful suspense through which they had passed.

In the afternoon I walked over to my own place to see Calder, the overseer. I received from him a detailed and most doleful account of [my] losses and the behavior of the negroes. Every living thing taken or destroyed, all the horses, the mules, the hogs (of which there were 100 head), cattle, chickens, ducks, every wheeled vehicle, also much corn, but none of the rice and cotton.

The negroes throughout the country he represents as in a state of complete insubordination – no work of any kind done. The Yankees had not only stripped him, Calder, of everything but had personally maltreated him and his family. They have treated overseers everywhere, I hear, harshly, and the negroes too take the opportunity of showing their dislike. To me and Sister’s family the negroes are extremely kind and considerate, even affectionate. Sister and her family are served as usual, and even more kindly and faithfully than usual.”

(‘Ware Sherman: A Journal of Three Months Personal Experience in the Last Days of the Confederacy. Joseph LeConte. LSU Press, 1999. Original 1937. pp. 29-32)

Author Roger Lowenstein writes that on Christmas Eve, 1825, “Thomas Jefferson let out an anguished cry. The government of the country he had helped to found, half a century earlier, was causing him great distress. It was assuming vast powers, specifically the right to construct canals and roads, and to effect other improvements. Jefferson thought of the federal government in the most restrictive terms: as a “compact” or a “confederated fabric” – that is, a loose affiliation of practically sovereign States.”

Thomas Jefferson’s “Rupture”

“He was roused at the age of eighty-two to issue a “Solemn Declaration and Protest” against what he termed the “usurpation” of power by the federal branch. Jefferson was so agitated that he declared that the “rupture” of the United States would be, although a calamity, not the greatest calamity. Even worse, reckoned the sage of Monticello, would be “submission to a government of unlimited powers.”

Though Federalists led by Alexander Hamilton had sought to establish a strong central government, Jeffersonians adamantly objected. No fewer than six of President Jefferson’s successors vetoed or thwarted federal legislation to build roads and canals, improve harbors and riverways, maintain a national bank, [and] fund education . . .”

Had Jefferson survived until 1860, the federal government of that day would not have displeased him. Its main vocation was operating the postal service and collecting customs duties at ports, [and] its army consisted of merely sixteen thousand troops scattered mostly among a series of isolated forts west of the Mississippi. The federal payroll was modest . . . the civilian bureaucracy in Washington consisted of a mere two thousand employees.

The modest federal purse was supported by tariff duties and a smattering of land sales. Federal taxes (an unpleasant reminder of the English Parliament) were reflexively scorned. Then came the “rupture.”

The Republicans – [Lincoln elected in November 1860] – vastly enlarged the federal government . . . [and] accomplished a revolution that has been largely overlooked.”

(Ways and Means: Lincoln and His Cabinet and the Financing of the Civil War. Roger Lowenstein, Penguin Books, 2022. pp. 1-2)

“[The] fact remains that that the Civil War was a political and constitutional watershed in United States history. Although the Civil War draft was primarily an inducement to volunteering [with ample financial incentives], the arbitrary arrests [of civilians] and first use of [a clearly unconstitutional] national conscription established important precedents. Economically, power shifted toward the industrialized North.  Moreover, at war’s end the very concept of State sovereignty established by the Founders had little meaning.

As Professor William B. Hesseltine said many years later, it was a “war against the States, both North and South. Within half a century after Appomattox, the federal government began to regulate certain businesses and introduced a graduated income tax. These innovations would have been inconceivable prior to 1860.” Larry Gara, Wilmington College.

(Review of “The North Fights the Civil War: The Home Front,” J. Matthew Gallman (Dee Publishing, 1994. Published in Civil War History – A Journal of the Middle Period, Vol. 42, No. 3. September 1996).

On December 15, 1866, Gen. Robert E. Lee wrote Britain’s Lord Acton that he believed the victorious North’s consolidation of all the American States into “one vast republic . . . will be the certain precursor to ruin which has overwhelmed all those that have preceded it.” Lee. Like many others, saw the authority reserved to the States and the people, now destroyed by the war, had been “the only safeguard to the continuance of free government.”

Below, author Gore Vidal wrote in 2002 of the national security state’s creation by Harry Truman, though it was certainly put into motion first by Lincoln, reinforced by Woodrow Wilson and perfected by Roosevelt the Second. Unfortunately, Vidal’s research does not reveal the military-industrial, security state apparatus created by Lincoln.

Aggressive Abroad and Despotic at Home

“Fifty years ago, Harry Truman replaced the old republic with a national security state whose sole purpose is to wage perpetual wars, hot, cold and tepid. Exact date of replacement? February 27, 1947. Place: White House Cabinet Room. Cast: Truman, Undersecretary of State Dean Acheson, and a handful of congressional leaders.

Republican Senator Arthur Vandenburg told Truman he could have his militarized economy only if he first “scared the hell out of the American people” that the Russians were coming. Truman obliged.

The perpetual war began. Representative government of, by and for the people is now a faded memory. Only corporate America enjoys representation by the Congresses and presidents that it pays for in an arrangement where no one is entirely accountable because those who have bought the government also own the media.

Now with the revolt of the Praetorian Guard at the Pentagon, we are entering a new and dangerous phase. Although we regularly stigmatize other societies as rogue states, we ourselves have become the largest rogue state of all. We honor no treaties. We spurn international courts. We strike unilaterally whenever we choose. We give orders to the United Nations but do not pay our dues. We complain of terrorism, yet our empire is now the greatest terrorist of all. We bomb, invade, subvert other states.

We have allowed our institutions to be taken over in the name of a globalized American empire that is totally alien in concept to anything our Founders had in mind.”

(Perpetual War for Perpetual Peace: How We Got to be So Hated. Gore Vidal. Thunder’s Mouth Press, 2002, pp. 158-159)

What is termed “total war” can be said to begin with the birth of the modern state, in which war became an instrument of national policy. Though the north’s “Lieber Code” of early 1863 clearly protected civilians from the barbarous acts of invading northern armies, senior officers such as Sherman had evolved their own personal philosophy of war clearly at variance with official pronouncements. Despite the “Code”, Sherman’s brutal conduct found no opposition from Lincoln or Grant.

Americans Civilians Suffer Total War

“The march of the Federals into our State,” says a writer in the Columbia [South Carolina] Phoenix, “was characterized by such scenes of license, plunder and conflagration as showed that the threats of the northern press, and that of their soldiery, were not to be regarded as mere brutum fulmen.

Daily, long trains of fugitives lined the roads, with wives and children, and horses and stock and cattle, seeking refuge from their pursuers. Long lines of wagons covered the highways. Half-naked people cowered from the winter under bush-tents in the thickets, under the eaves of houses, under the railroad sheds and in old cars left along the route. All these repeated the same story of suffering, violence, poverty and nakedness. Habitation after habitation, village after village – one sending up its signal flames to the other, presaging for it the same fate – lighted the winter and midnight sky with crimson horrors.

“No language can describe, not can any catalogue furnish, an adequate detail of the widespread destruction of homes and property. Granaries were emptied, and where the grain was not carried off, it was strewn to waste under the feet of the [Yankee] cavalry, or consigned to the fire which consumed the dwelling. The negroes were robbed equally with the whites of food and clothing. The roads were covered with butchered cattle, hogs, mules, and the costliest furniture. Valuable cabinets, rich pianos, were not only hewn to pieces, but bottles of ink, turpentine, oil, whatever could efface or destroy, were employed to defile and ruin. Horses were ridden into the houses.

“The beautiful homesteads of the parish country . . . were ruined; ancient dwellings of black cypress, one hundred years old, which had been reared by the fathers of the Republic – men whose names were famous in Revolutionary history – were given to the torch as recklessly as were the rude hovels; choice pictures and works of art from Europe, select and numerous libraries, were all destroyed.

The inhabitants, black no less than white, were left to starve, compelled to feed only upon the garbage to be found in the abandoned camps of the northern soldiers. The corn scraped up from the spots where the horses fed has been the only means of life left to thousands but lately in affluence.”

(The Desolate South, 1865-1866. John T. Trowbridge; Gordon Carroll, ed. Little, Brown and Company, 1956, pp. 294-296)

Lincoln, in his first inaugural address, promised no interference with the South’s labor system and admitted that a president lacked the authority to do so. But he did threaten to invade any State that failed to collect federal tariff revenues – despite the US Constitution’s Article III, Section 3, declaring treason to be waging war against one of “Them”, the States, or adhering to their enemy, giving them aid and comfort.

Lincoln’s Tariff War

“Once the Republicans were confident that Lincoln would win the 1860 election, and especially once the Southern Democrats began leaving the U.S. Congress, they did what they had been dreaming of doing for decades: They went on a protectionist frenzy that lasted for decades after the war.

The Morrill Tariff was passed by the House of Representatives in May 1860 and by the Senate in March 1861, just prior to Lincoln’s inauguration. Thus, the apparatus of protectionism was initiated before Fort Sumter and before the war. The Morrill Tariff was not passed to finance the war; it was passed because the old-line Whigs, who were now Republicans [including Lincoln], finally had the power to do it.

Even though it was passed before Lincoln officially took office, it is important to note that, as the Republicans’ presidential candidate, he was the leader of the party and, as such, most likely had a great deal to do with the political maneuvering on behalf of the tariff.

[In his classic 1931 book, “The Tariff History of the United States”] Frank Taussig explains that “in the next regular [congressional] session, in December 1861, a still further increase of [tariff] duties was made. From that time until 1865, no session, indeed, hardly a month of any session, passed in which some increase in of duties on imports were not made.” By 1862, the average tariff rate had crept up to 47.06 percent which “established protective duties [for Northern industries] more extreme than had been ventured on in any previous tariff act in our country’s history.”

The Republicans openly admitted that the purpose of their protectionist policy was not necessarily to raise money to finance the war but to pay off Northern manufacturers for their political support. The manufacturers were being taxed explicitly (through excise taxes) to help finance the war, and the tariff was a way to offset those losses.  Congress enacted and Lincoln signed into law tariff legislation “whose chief effect was to bring money into the pockets of private individuals.”

Long after the war, Taussig concluded, “almost every increase in duties demanded by domestic producers was readily made” and “great forces were made by changes in legislation urged and brought about by those who were benefited by them.”

(Abraham Lincon and the Triumph of Mercantilism, Thomas J. DiLorenzo. Reassessing the Presidency. John V. Denson, ed., Mises Institute Press, 2001, pp. 220-221)

A Land as Silent as a Graveyard

“The raids and rumors of raids were so traumatic to Clarissa Bowen that the tired, terrified woman miscarried. “All was over and we knew that God had taken from us the desire from our hearts – our much prayed for and longed for treasure,” the South Carolinian wrote in her journal, June 1865. “O, it was hard, very, very hard to give up . . . My recovery had been slow, being constantly retarded by fear of the Yankees.”

“Still another batch of Yankees . . .,” a weary Eliza Andrews scribbled in her diary. “One of them proceeded to distinguish himself at once, by ‘capturing’ a Negro’s watch. They carry out their principles by robbing impartially, without regard to race, color or previous condition. Ginny Dick has kept his watch and chain hid ever since the bluecoats put forth this act of philanthropy, and . . . old Maum Betsy says that she has “knowed white folks all her life an’ some mighty mean ones, but Yankees is de fust ever she seed mean enough to steal from n******.”

Not surprisingly, after suffering through several such visits, most plantations and farms had little more to offer. “We were left almost destitute,” said one stunned and suddenly impoverished lady. “Our poverty,” noted another victim, “is now our protection.”

Eventually, the highways of the South began to resemble scenes from antiquity and the plundering hordes of Mongolia. Observed one man:

“The road was filled with an indiscriminate mass of armed men on horseback and on foot, carts, wagons, cannon and caissons, rolling along in most tumultuous disorder, while to the right and to the left, joining the mass, and detaching from it, singly and in groups, were hundreds [of soldiers] going empty-handed and returning laden. Country carts, horses, mules and oxen, followed by Negro men, women and even children, (who were pressed into service to carry plunder) laden with every conceivable object, were approaching and mingling in mass from every side.

When the blue tide finally receded and moved off to garrison the cities and towns of the South, it left behind in its wake a land “as silent as a graveyard.”

(The Day Dixie Died – Southern Occupation 1865-1866. Thomas and Debra Goodrich. Stackpole Books, 2001, pp. 100-101)

The public mind of the North from April through the summer of 1865 was one of vengeance, blood and death to the “rebels.” The South was roundly blamed for “treason” as well as the horrors of Andersonville, though it was Grant – with Lincoln’s approval – who refused Southern offers of food, medicines and medical care for Northern prisoners.

The War Secretary’s Government

“The secret papers of the Lincoln administration had been kept sealed at the request of his heirs until certain persons named therein were dead. It is difficult to understand why Lincoln’s family wished to protect those at whom the finger of suspicion would have pointed by disclosure of these papers after his murder. For the papers indicated that Lincoln’s Secretary of War, Edwin M. Stanton, had prior knowledge of the reported plot of John Wilkes Booth and others at Mrs. Surratt’s boarding house in Washington, but had failed to either warn Lincoln or give him special protection.

It was obvious to observers at the time that the real beneficiary, should the plot have succeeded in killing the Vice-President and Secretary of State also would have been the Secretary of War – Stanton himself – who would have been next in line for the Presidency. Moreover, the Radical Republicans had refused to support Lincoln at the 1864 party convention, and this was the faction supported by and supporting Stanton in the disputes following Andrew Johnson’s accession.

Immediately following Lincoln’s assassination, Stanton was in full control of the government through martial law and was in charge of the trials of the so-called conspirators. While the hanging of so many persons without a civil trial did not arouse much comment abroad, the execution of Mrs. Surratt, because Booth had lodged at her house, was the subject of considerable discussion.

It is revealed in official testimony that Mrs. Surratt was offered her life if her son would give himself up. An effort was made by high members of the US government, including members of Congress, to obtain a civil trial for her. But the War Secretary refused on grounds that the executions were necessary to avert panic among the populace. This would indicate, of course, that the outcome of the military trial was predetermined.

Newspapers in France and Mexico began to refer to the Washington government as the “murderers of Mrs. Surratt.” The North’s bitterness against her son, Johnny Surratt, was heightened by the rumor that he was one of the leaders in the Confederate raid on St. Albans, Vermont, from Canada. A reward of $50,000 was offered for his apprehension but was never collected.”

(The Saga of Felix Senac: Legend and Life of a Confederate Agent in Europe. Regina Rapier, Bulletin of Art & History, No. 1, 1972. pp. 182-183)