Circa1865

Jefferson Davis served as both a United States Representative and Senator from Mississippi, Secretary of War, 1853-1857 under President Franklin Pierce, and President of the Confederate States, 1861-1865. He was a staunch Southern Unionist who strived to find peaceful solutions to the sectional controversies that would lead to secession of the Southern States.  The “Know-Nothingism” mentioned below was a Northern nativist political party of the late 1840s and 1850s which opposed the immigration of Irish and German Catholics — Nathaniel P. Banks of Massachusetts and New Yorker Millard Fillmore were leaders of the party.  The following is excerpted from Jefferson Davis’ address of October 2, 1857 at Mississippi City.

Bernhard Thuersam, www.Circa1865.com

Grecian Horses into the Southern Troy

“Colonel Davis rose . . . and referred to various events in the early history of Mississippi . . . that she had never violated the compact of our Union, and unresistingly borne disproportionate burthens for the support of the general government in peace . . . [and] at the first call for soldiers to maintain the honor of the national flag, had, like a Spartan mother, girded the sword upon her sons, who knew well they could never return to the maternal embrace unless they came covered with honorable fame or wrapped in the shroud of death.

[Regarding incessant Northern aggressions borne by the South, were] we to have more compromises to gather further disappointment, and sink still lower from the equality which our Fathers maintained, and transmitted to us? Fraternity and mutual alliance for the interests of each was the motive and purpose for which the Union was formed.

Preparation in the South to maintain her rights in any contingency which the future might and was likely to bring forth, would best serve to strengthen her Northern allies, if they remained true; and would best enable her to dispense with their services, if they should desert.

It was not upon mere party relation that his hopes were founded; it was upon the elevating, purifying power of the doctrine of State rights and strict construction [of the United States Constitution] – the Shibboleth which none but Democrats can pronounce.

In the earlier, and might well be said, in the purer days of the Republic, Mr. Jefferson pronounced the Northern Democracy the neutral allies of the South, and if that alliance was broken there was surely no other on which to rely.

From the foundation of the Government, the party opposed to the Democracy, under its various names and issues had always evinced its tendency to centralization by the latitudinous construction of the powers delegated to the Federal Government.

As examples, he cited the charter of the United States Bank, the enactment of a tariff for protection, a system of internal improvements, a genera distribution of public lands and of public treasure, and last, lowest in tone, and, as its name implied, in intelligence, Know-Nothingism, with its purpose to concede to the Federal Government the power to prescribe the terms on which naturalized citizens should be invested with the right of suffrage in the States.

He said that he considered every departure from strict construction of grants to the Federal Government, as the introduction of another Grecian horse into our Southern Troy, and he invoked every Mississippian to united and vigilant resistance to every such measure.

The South, as a minority section, can alone be secure in her rights by resolutely maintaining the equality and independence of the States, and thus alone could we hope to make our Union perpetual and effective for the great purposes for which it was ordained and established.

He then urged the necessity of home education, of normal schools, and Southern school-books, as the next step after the mother’s pious training in the formation of that character which was essential to progress toward that high destiny to which his anticipation pointed.

If, as was sometimes asserted, Governments contain within themselves the elements of their own destruction, as animate beings have their growth, their maturity to decay; if ours, the last, best hope of civil liberty was, like the many experiments which preceded it, to be engulfed in the sea of time . . . [he hoped] Mississippi would stand conspicuous for all that was virtuous and noble; that through the waves of fanaticism, anarchy and civil strife, her sons would be the Levites who would bear the ark of the Constitution, and when unable to save it from wreck, that in the pile of its sacred timbers their bones would be found mingled.”

(Speech at Mississippi City; The Papers of Jefferson Davis, Volume 6, 1856-1860, L. Crist/M. Dix, editors, LSU Press, 1989, excerpts, pp. 138-139; 153-155)

The following is excerpted from a postwar letter written by Clement C. Clay of Alabama, to review the facts leading to the withdrawal of the Southern States in 1861, and Jefferson Davis’ efforts to forestall secession, seek conciliation with Northern leaders, and preserve the Union. It clearly identifies those wanting to preserve the Union, and lays the responsibility for disunion at the feet of Lincoln’s party.

Bernhard Thuersam, www.Circa1865.com

The Republican’s Stubborn Purpose

“Mr. Davis did not take an active part in planning or hastening secession. I think he only regretfully consented to it, as a political necessity for the preservation of popular and State rights’ which were seriously threatened by the triumph of a sectional party who were pledged to make war on them.

No “plan of secession” or “scheme of revolution” was, to my knowledge, discussed – certainly none matured – at the [Democratic] caucus, 5^th of January, 1861 . . . I have never heard that the caucus advised the South “to accumulate munitions of war,” or “to organize and equip an army of one hundred thousand men,” or determined “to hold on as long as possible to the Southern seats [in Congress].”

So far from it, a majority of Southern Senators seemed to think there would be no war; that the dominant party in the North desired separation from the South, and would gladly let their “erring sisters go in peace.” I could multiply proofs of such a disposition.

As to holding on to their seats, no Southern legislature advised it, no Southern Senator who favored secession did so but one, and none others wished to do so, I believe.

The “plan of secession,” if any, and the purpose of secession, unquestionably, originated, not in Washington City, or with the Senators or Representatives of the South, but among the people of the several States, many months before it was attempted. They followed no leaders at Washington or elsewhere, but acted for themselves, with an independence and unanimity unprecedented in any movement of such magnitude.

Before the election of Lincoln, all the Southern States, excepting one or two, had pledged themselves to separate from the Union upon the triumph f a sectional party in the Presidential election, by acts or resolutions of their Legislatures, resolves of both Democratic and Whig State Conventions, and of primary assemblies of the people – in every way in which they could commit themselves to any future act.

Their purpose was proclaimed to the world through the press and telegraph, and criticized in Congress, in the Northern Legislatures, in press and pulpit, and on the hustings, during many months before Congress met in December, 1860.

Over and above all these facts, the reports of the United States Senate show that, prior to the 5^th of January 1861, Southern Senators united with Northern Democratic Senators in an effort to effect pacification and prevent secession, and that Jefferson Davis was one of a committee appointed by the Senate to consider and report such a measure; that it failed because the Northern Republicans opposed everything that looked to peace; that Senator [Stephen A.] Douglas arraigned them as trying to precipitate secession, referred to Jefferson Davis as one who sought conciliation, and called upon Republican Senators to tell what they would do, if anything, to restore harmony and prevent disunion. They did not even deign a response.

Thus by their sullen silence, they made confession (without avoidance) of their stubborn purpose to hold up no hand raised to maintain the Union . . .”

(The Rise and Fall of the Confederate Government, Volume One, Jefferson Davis, D. Appleton and Company, 1881, excerpts, pp. 206-209)

In 1846 the US Treasury Department recorded that under the then-current tariff that the self-sustaining industry of the country was indirectly taxed “$80,000,000 annually, none of which went into the coffers of the government, but all into the pocket of the protected [Northern] manufacturer.” In addition to paying the vast bulk of the operation of government through tariffs paid, the South complained of the unequal distribution of public expenditures that went northward instead of toward them.

Bernhard Thuersam, www.Circa1865.com

Tribute Money to Northern Industry

“Virginia was the leader in the war of the Revolution, and her sons were the master-spirits of it, both in the field and in the cabinet. For an entire generation after the establishment of the government under the constitution, four of her sons – with an interregnum of only four years – were called, one after the other, to preside, each for a period of eight years, over the affairs of the young Republic and to shape its policy. Under the wise rule of her illustrious sons in the presidential chair, the Republic grew and its citizens flourished and prospered as no people had ever done.

During this time . . . the Northern population discovered that it would be better to sell their slaves to the South than to hold them, whereupon acts of so-called emancipation were passed in the North. [The North] got rid of its slaves, not so much by emancipation or any sympathy for the blacks as by sale, and in consequence to her greed.

About this time [1819] also Missouri – into which the early settlers had carried their slaves – applied for admission into the Union as a State. The North opposed it, on the ground that slavery existed there. The South appealed to the constitution . . . and asked for the clause which gave Congress the power to interfere with the domestic institutions of any State or with any of her affairs . . .

The Union public mind became excited, sectional feelings ran high, and the Union was in danger of being broken up through Northern aggression and Congressional usurpations at that early day. To quiet the storm, a son of Virginia came forward as peace-maker, and carried through Congress . . . “[the] Missouri Compromise.”

That posterity may fairly appreciate the extent of this exaction with the North, with the sacrifice made by the South to satisfy it, maintain the public faith and preserve the Union . . . [embraced] an area of 1,360,000 miles. The sacrifice thus made by the South, for the sake of the Union, will be more fully appreciated when we reflect that under the Constitution [the South] had as much right to go into the territories with their slaves, that men of the North had to carry with them there their apprentices and servants.

[After the War of 1812] . . . Southern statesmen took the lead in the passage of a tariff to encourage and protect [New England] manufacturing industries. [In time], the protection continued, and was so successful that . . . New England began to compete in foreign markets [and] the South said, “Enough, the North has free trade with us; the Atlantic ocean rolls between this country and Europe; the expense of freight and transportation across it, with moderate duties for revenue alone, ought to be protection enough for these Northern industries. Therefore, let us do away with tariffs for protection. They have not . . . turned a wheel in the South; moreover, they have proved a grievous burden for our people.

The example was to this effect: — The Northern farmer clips his hundred bales of wool, and the Southern farmer picks his hundred bales of cotton. So far they are equal, for the government affords to each equal protection in person and property. But the government . . . went further – protected this industry of one section and taxed that of the other. [To ship wool or cotton to the Charleston market] the Northern man is told that he may land his one hundred bales duty free; but the Southern man is required to leave forty of his in the custom house for the privilege of landing the remaining sixty.

It is in vain for the Southerner to protest or to urge, “You make us pay bounties to Northern fishermen under the plea that it is a nursery for seamen. Is not the fetching and carrying of Southern cotton across the sea in Southern ships as much a nursery for seamen as the catching of codfish in Yankee smacks? But instead of allowing us a bounty for this, you exact taxes and require protection of our Northern fellow-citizens at the expense of Southern industry and enterprise.”

(The Davis Memorial Volume; or Our Dead President, Jefferson Davis, and the World’s Tribute to His Memory, J. Wm. Jones, B.F. Johnson & Company, Publishers, 1890, excerpts, pp. 236-240)

Apparently missing the brutal industrial slavery that flourished among them, New England abolitionists, “looking about with an eye long-trained to detect sinners,” began a moral crusade against the aristocrats of the American South who they imagined were mistreating their own laborers. All the ills of Northern society, social, agricultural and financial, were found to originate with the evil slaveholders.

Bernhard Thuersam, www.Circa1865.com

New England’s Industrial Slaves

“[The] first significant result of the coming of finance-industrial capitalism to [New England] in the years between 1815 and 1844, was the rise of a new and powerful group of business leaders, and the creation of a new and uniquely dependent body of workers.

A decline in commerce made capital available and scattered cotton mills about wherever water power could be found. Profits soared. Successful groups . . . bought up power sites, built machine shops, laid out and built whole factory towns, speculated in lands, projected canals and railroads, and found use for their surplus capital in banking and insurance.

[The Northern merchants] harsh old Calvinistic beliefs gave way to more rational and dignified ones, and their political needs found expression in the conservative doctrines of the Whig party. A new aristocracy of growing wealth and power had come into being.

The young folks who came down from the country to work in the mills soon learned that their move meant . . . Long hours . . . in a poorly ventilated, lint-filled room spent at a single task . . . They also learned that bitter competition between factories in period of depression meant longer hours, more spindles to tend, and reduced wages. To protest or to strike brought lockouts and black lists. By 1844 most New England girls had chosen the latter course, and French Canadian and Irish girls had taken their places.

Workers looked “round them upon the princely palaces and gaudy equipages of the rich” who consumed the fruits of the poor man’s labor without adding to “the common stock a grain of wheat or a blade of grass.”

And when the right to organize was denied by the courts, workers solemnly proclaimed that “the freemen of the North are now on a level with the slaves of the South, with no other privilege than laboring, that drones may fatten on your life blood.”

Sympathy for the workers was [intense]. “There is not a State’s prison or house of correction in New England where the hours of labor are so long, the hours for meals so short, and the ventilation so neglected as in the cotton mills with which I am acquainted,” wrote Dr. Josiah C. Curtis in his report to the American Medical Association.

“Where is the humanity,” asked another. “It is swallowed up in gain – for the almighty dollar, and for this, poor girls are enslaved and kept in a state little better than machinery, [but when they become unable to work they] are laid to one side and new [human] machinery procured.”

And what became of the girl who was laid aside? The Daily Democrat tells us that “while those who reaped the profits” dropped “their heads on the cologne-scented handkerchiefs on prayer and thanksgiving every Sabbath day,” the poor mill-girl came “to Boston to die in the brothel.”

“ . . . At the North, the master has a lash more potent than the whipthong to stimulate the energies of his white slaves: fear of want.” And because the Northern worker did not see his chains, he was none the less a slave.

As one man put it: “When capital has gotten thirteen hours of labor daily out of a being it can get nothing more. It would be a very poor speculation in an industrial point of view to own the [laborers], for the trouble and expense of providing for times of sickness and old-age would more than counterbalance the difference between the price of wages and the expense of boarding and clothing . . . “

“Wages,” added Orestes Brownson, “is a cunning device of the devil for the benefit of the tender conscience, who would retain all the advantages of the slave system, without the expense, trouble and odium of being slaveholders.”

(The Civil War in the Making, Avery O. Craven, LSU Press, 1959, excerpts, pp. 9-16)

Lee was not alone in seeing the masked reasons for the war prosecuted by the North and the opportunity seen in reducing the American South to a politically-weak economic colony. The bounty-enriched foreign mercenaries and displaced slaves used to fight its war of conquest were expendable tools for the task, and later employed to eradicate Indians.

Bernhard Thuersam, www.Circa1865.com

The Dollar Invades and Conquers

“Certainly he must have sensed that in the future “those people,” as he called his Northern adversaries, were determined to push aside “his people” with their aristocratic prerogatives and privileges. Despite his determination to stay out of politics both during and after the war, Lee could see the handwriting on the wall as plain as anyone, and plainer than most.

He understood that in addition to the sharp odor of gunpowder, there was the sweet smell of profits in the balmy spring air. Lincoln’s Secretary of the Treasury, visiting New York earlier that spring, had noted that many people there paid more attention to the stock market than to the casualty reports. To this a New York editor added: “Real or professed patriotism may be made to cover a multitude of sins. Gallantry in battle may be regarded as a substitute for all the duties of the Decalogue.”

In the Northern States, the rapid transformation from a conglomeration of farmers to a nation of industrialists had been hastened by the war. The exclusion of Southern planters from the halls of government made the change considerably easier. Astronomical profits on wartime speculation and gouging encouraged rapid expansion. While the brave boys in [blue] shed blood on the battlefields, the crafty made profits back home.

If the drama of collapse and surrender centered in the South, the drama of growth and expansion focused on the West. Hundreds of millions of dollars would go there; the receding frontier would be whittled down by systematic attacks of the Yankee investor. The Federal government would help by showering the railroads and settlers with land and services. Mines, cattle and farming would boom. Where bayonet had never been, the dollar would invade and conquer.”

(Lee After the War, Marshall W. Fishwick, Dodd, Mead & Company, 1963, pp. 39-40)

Grant’s relentless and costly attacks on General Lee in Virginia earned him the title of “Butcher” among his own troops and was kept in command by Lincoln who was unbothered by the vast casualty numbers amassed by Grant. He quickly saw that following the Radicals after his master’s assassination was the proper path, and he was rewarded with election to the presidency, though only with the votes of freedmen herded to the polls in the South. His administration was marked with scandal, and his own vice president indicted for corruption. The following able criticism of General Grant’s claim to great generalship was published in the New York Tribune in July 1883.

Bernhard Thuersam, www.Circa1865.com

Grant Never Faced Stonewall Jackson

“To the Editor of the Tribune:

Sir, — The attitude in which General Grant has so long been posed before the world is likely to receive a severe blow from the publication of General Humphrey’s last volume of “The Campaigns of the Civil War,” of which the Tribune contained a review yesterday.

Colonel Hambley, of the British army, in his great work on the Art of War . . . speaks of General Grant as one “who was successful on a moderate terrain like Vicksburg, but whose Virginia campaign was a failure,” and elsewhere of “Grant’s useless sacrifice of ten thousand men at Cold Harbor.” This judgement is tacitly supported by General Humphrey’s book by what would seem to be a column if indisputable facts.

I understand from him that General Grant was at least seven times conspicuously and with enormous loss defeated by General Lee before the exhaustion of his war materials and the universal collapse of the Confederacy compelled the latter to surrender. These were not reported as defeats in the bulletins of the day, and some of them were even supposed to be victories, as in the case of Hancock’s magnificent attempt to break through Lee’s centre at Spottsylvania Courthouse; but they were defeats nonetheless.

Many things conspired to prevent General Lee’s victories from being decisive: The overwhelming superiority of the Union army in numbers and munitions of war, his own lack of absolutely necessary war materiel . . . and the lack of an able coadjutor like Stonewall Jackson.

One can well believe that had Jackson lived a year longer Grant would not only have been defeated, but, as a consequence of his stubborn adhesion to a single military idea, pretty nearly destroyed. Grant possessed an advantage over all his predecessors in Virginia; that he never had to contend with Jackson. The dry truth of it is that Grant lost more battles in Virginia than he ever won elsewhere.

In the tenacity with which Grant followed out a determination once fixed in his mind, perhaps no man has ever surpassed him; but it was an expensive virtue for his soldiers, as the hundred thousand men he lost in Virginia are a witness. Whether he should have been removed after Cold Harbor, a disastrous blunder only equaled by Burnside’s at Fredericksburg, is a difficult matter to determine.

Yet this man . . . received the credit of having suppressed the Confederacy; without education for or experience in civil affairs was made President for eight years; and finally was carried around the earth and exhibited to the nations as the greatest prodigy of the age.

F.P.S. College Hill, Mass., July 4, 1883”

(A Northern Opinion of Grant’s Generalship, Southern Historical Society Papers, Volume XII, 1884, J. William Jones, editor, Broadfoot Publishing, 1990, excerpts, pp. 21-22)

After the mine under Confederate lines at Petersburg was exploded in late July, 1864, the Northern assault into the crater was to be led by black troops, ordered by Gen. Ambrose Burnside, though criticized by Gen. George Meade as they were inexperienced. The black troops were not committed until after the initial assault, but intense defensive fire routed them and their white counterparts caught in the crater. It was reported that black troops were the most visible participants in the retreat and an observer recalled being brought to a halt by “terror-stricken darkies who came surging over [us] with a force that seemed almost irresistible. They yelled and groaned in despair and when we barred their progress” (Army of Amateurs, Longacre, pg. 190). Gen. Grant later stated that he was confident that the black troops would have carried the assault if they had led it, though agreeing that they were inexperienced troops.

Bernhard Thuersam, www.Circa1865.com

Grant’s Sable Arm at The Crater

“Lieutenant Colonel Charles Loring, a [General Ambrose] Burnside aide who had been observing matters [at the Crater battle] all morning, was so appalled by the prospect of the black soldiers’ advancing into the confusion that he countermanded the order and raced off to report directly to [Burnside, who simply restated his previous order to attack].

The officers commanding the black troops now discovered that it was nearly impossible to advance their men in any orderly fashion. Confederate artillery ranged all surface approaches to the jump-off point . . . [but the] 30^th [US Colored Troops] was the first black regiment to advance toward the crater. “The slaughter was fearful,” one [young regimental officer] later wrote home . . . “bullets came in amongst us like hailstones . . . Men were getting killed and wounded on all sides of me.”

[Northern commander U.S. Grant] found Burnside in a small fieldwork overlooking the front. Grant wasted no time. “The entire opportunity has been lost,” he said, rapidly. “There is now no chance of success. These troops must be immediately withdrawn. It is slaughter to leave them here.” Burnside . . .”was still hoping something could be accomplished.”

[At a court of inquiry, Grant stated that] “I blame myself for one thing, I was informed . . . that General Burnside . . . trusted to the pulling of straws [as to] which division should lead [the attack]. It happened to fall on [who] I thought was the worst commander in his corps . . . I mean General [James] Ledlie.”

[Grant continued:] “General Burnside wanted to put his colored division in front [to lead the initial assault], and I believe that if he had done so it would have been a success. Still I agreed with General Meade as to his objections to that plan [that the colored division was “a new division, and had never been under fire – had never been tried . . .”].

General Meade said that if we put the colored troops in front . . . and it should prove a failure, it would then be said, and very properly, that we were shoving these people ahead to get killed because we did not care anything about them.”

(The Last Citadel, Petersburg, Virginia, June 1864-April 1865, Noah Andre Trudeau, Little, Brown and Company, 1991, excerpts, pp. 115-117; 126)

Despite being one of the most scholarly men to ascend to the presidency, professional historian and political scientist Woodrow Wilson was described as being “surprisingly uninformed about foreign affairs.” After election on the promise that no American boys would die on Europe’s battlefields, he was bullied into the war by steel, munitions and financial lobbies, as well as British propaganda, while dreaming of his part in erecting a world peace that would endure forever. Washington presciently warned of foreign entanglements; Wilson’s secrecy and blunders brought nearly 117,000 American dead by 1918, and as he helped lay the foundation for a German nationalist to replace the Kaiser, another 407,000 American dead in World War Two.  It was far better to leave European intrigues to Europeans.

Bernhard Thuersam, www.Circa1865.com

Wilson Confronts Old-Fashioned Imperialism

“President Wilson apparently at first thought that American participation in the war would be confined primarily to economic and financial contributions, with the navy to help cope with the U-boat menace. As Allied needs became more fully known, however, it became apparent that victory would necessitate the training and transportation to the western front of vast numbers of American troops.

Wilson and Secretary [of State Robert] Lansing, despite subsequent denials to the Senate Foreign Relations Committee, were aware prior to the peace conference of the existence of the secret treaties among the [European] Allies which provided for territorial gains after the war. These treaties and agreements, such as the 1915 Treaty of London between the principal Allies and Italy, were not necessarily evil but were in fact the inevitable results of a coalition war.

To Wilson, however, they represented old-fashioned imperialism which would endanger the future stability and peace of the world. During his visit to America, [Britain’s Lord] Balfour had revealed most of the terms of the territorial arrangements whereby Germany’s colonies were to be apportioned among the victors and important territories in Europe and the Near East would be similarly allocated.

The only major agreement of which the major American officials were not then informed was that relating to Japan’s acquisition of the German holdings in Shantung Province, China. There can be little doubt that the president and his secretary of state knew the essential details long before the peace conference convened. The official attitude, however, remained one of indifference and formal ignorance:

“This Government is not now and has not been in the past concerned in any way with secret arrangements or treaties among European powers in regards to war settlements. As to the secret treaties [released in Russia] . . . the Department [of State] has no knowledge of their existence or their terms except through reports emanating from the Bolshevik press.”

Aware of these arrangements to divide the spoils, Wilson wrote [Colonel Edward] House that “England and France have not the same views with regard to peace that we have by any means.” Yet to discuss postwar settlement at that time would only precipitate disagreements and a probable weakening of the war effort, to the benefit of Germany.”

(The Great Departure, The United States and World War One, 1914-1920, David M. Smith, John Wiley and Sons, 1965, excerpts, pp. 85-87)

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)

In the following study of Francis Lieber’s General Orders No. 100, which claimed to guide the US military in its war upon the South, was the author’s comment that “Perhaps the most significant element of Lieber’s treatise that betrays the lack of attention to US law comes down to this observation: there is no specific reference to the United States Constitution in General Orders No. 100.” Francis (Franz) Lieber was a German revolutionist who fled his home in 1827, settling in Boston. He lost a son in the War Between the States, who fought for the South.

Bernhard Thuersam, www.Circa1865.com

Opening the Door to Barbarism

“Two years into the conflict, after countless thousands of soldiers had died . . . the United States announced the rules by which it conducted the fighting. These regulations took the form of a document bearing the nondescript title of General Orders No. 100, instructions for the government of the armies of the United States in the field, which was compiled by a professor at Columbia College. Francis Lieber was a German émigré, a classical liberal forced by political persecution from his native country.

But there is a puzzling side to this document that has gone largely unnoticed by historians and legal scholars. Why was it allowed to be created and adopted?

One could argue that the process by which Lieber’s code of war came into being contradicted constitutional principles and the established practices of the United States. The Constitution states that the power to declare war and, even more pertinently, to “make rules for the government and regulation of the land and naval forces” belongs with the Congress.

When the nation created the Articles of War in 1806, it did so through congressional legislation, not executive fiat. With General Orders No. 100, the executive branch took a bolder step than many have realized, by assuming a right to determine the parameters of war making, especially the meaning of “military necessity,” without these policies originating with Congress.

As early as August 1861, he went on record in a public letter to Attorney General Bates concerning why the government could treat Confederates as belligerents without recognizing their nationhood. He had seized upon the rationale that became commonplace in the administration – and that owed itself to international precedents – that humanitarian reasons dictated exchanging prisoners and operating under the rules of war.

Reactions to [Lieber’s work] were predictable, with Republicans mostly supportive and administration opponents either ambivalent or hostile. The New York Herald . . . found some policy commendable . . . but stated flatly that “the inhabitants of the Southern States are not alien enemies, but citizens of the United States in insurrection, and consequently the alleged law of nations does not apply.”

Meanwhile, Confederate Secretary of War James Seddon and President Jefferson Davis found nothing to praise in the instructions, pointing out how the definition of “military necessity” opened the door to barbarism. Seddon said the order was “the handicraft of one much more familiar with the decrees of the imperial despotisms of the continent of Europe than with Magna Charta, the Petition of Rights, the Bill of Rights, the Declaration of Independence, and the Constitution of the United States.”

(With Malice Toward Some: Treason and Loyalty in the Civil War Era, William A. Blair, UNC Press, excerpts, pp. 93-96; 98)