Circa1865

Nearly two years into the war, Lincoln’s government announced “General Orders No. 100,” the rules under his armies would conduct their operations. Selected to write the code was Prussian emigre Francis Lieber, a fervent nationalist in Prussia who fled his country while under police investigation in 1825 for plotting to overthrow the government.  After short residence in England, he was recruited to teach at Columbia University, and in the United States “directed the ardent nationalistic emotion with which he had regarded Germany.” Lieber believed he left behind the “bureaucratic ministries and police spies,” though his new employer relied on these as well.

Lieber’s Puzzling Code of War

“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 [United States] 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 the right to determine the parameters of war making, especially the meaning of “military necessity,” without these policies originating with Congress.

As the compilation of military law and usages made its way through the bureaucracy, Lieber understood that at least a few paragraphs might benefit from “the assistance of Congress,” but added that it “is now too late.”

[Some] sections gave the executive and his generals broad powers. The instructions allowed for the bombardment of civilians feeling a siege back into towns so their suffering could force surrender more quickly; and for taking most of the property from an enemy based on military necessity.”

(With Malice Toward Some: Treason and Loyalty in the Civil War Era, William A. Blair, UNC Press, 2014, excerpt. pp. 93-94)

In addition to the Seminole tribe, the Cherokee, Chickasaw and Creeks all held slaves prior to the arrival of Europeans, acquiring African slaves from the latter. The tribes were often brutal toward their slaves, established their own “black codes” and lived in segregated villages.

Though African slaves were emancipated in the postwar South, the sovereign status of the tribes exempted them from US legislation. A treaty of 1866 freed the black slaves of Indians.

Seminole Slave Property

“During our war with the Seminoles in Florida, in 1837 and 1838, a large number of those Indians were emigrated west of the Mississippi river. They carried with them a “considerable number of Negroes, who had been claimed and lawfully held as slaves by Indians of the tribe,” the attorney-general for the United States tells us.  At its expense, the government moved both the Indians and their “property of great intrinsic value,” and settled the tribe in the Western Territory.

There the Negroes continued “in the possession and service of their Indian masters” until 1846. A large number then went into the Federal fort pursuant to an offer of qualified freedom made by an officer in command of Federal troops. In June 1848 J.Y. Mason, former attorney-general and then attorney-general ad interim, having consideration of this case and the case of slaves captured in that [Seminole] war both by our troops and by Indians acting as our allies, said:

“The legal principles applicable to the subject appear to me to be free from difficulty. Regarded as persons, the Negro slaves had no power to contract, and therefore could not enter into any treaty or convention. Regarded as property when captured, they were to be treated as any other moveable property captured from an enemy in a land war . . .”

He then pointed out that our government had restored all captured slaves to their former masters where their “status ante bellum” was established. And in the case of the others he held that they must be returned to their former masters, saying, “I do not perceive on what principles you can interfere or deprive the Seminoles of their property, to give to their slaves any qualified freedom.”

Again in 1855 Negro slave property belonging to Indians outside of the municipal regulations of any State, was recognized and protected by the Federal Government. Look into the adjudications in any of the Northern States and there we find that the slave was property no matter where found, and that the rules of litigation concerning property interests in him differed in no respect from those applied to any other property.”

(The Legal & Historical Status of the Dred Scott Decision, Elbert William R. Ewing, Cobden Publishing Company, 1909, excerpts pp. 176-177; 180)

Author Philip Leigh below writes that in late March 1860 as Lincoln wrestled with the question of whether to abandon Fort Sumter and preserve peace, or commit to war, he was visited by a group of New York merchants. Their desire for profits prevailed as it was “better to pay for armed conflict now than suffer prolonged economic disaster in a losing trade war.”

War for Mercantile Greatness

“[A] low tariff Southern Confederacy was an economic threat to a truncated Federal Union, particularly considering the North’s growing expectations for economic hegemony as the South lost influence in the Government. About a month before Fort Sumter surrendered, the Boston Transcript concluded on March 18, 1861 that the South did not seceded to protect slavery, but to become the North’s economic competitor:

“Alleged grievances in regard to slavery were originally the causes for the separation of the cotton States, but the mask has been thrown off, and it is apparent that the people of the seceding States are now for commercial independence . . . the merchants of New Orleans, Charleston and Savannah are possessed with the idea that New York, Boston and Philadelphia may be shorn . . . of their mercantile greatness by a revenue system verging upon free trade. If the Southern Confederation is allowed to carry out a policy by which only a nominal duty is laid upon imports, no doubt the businesses of the chief Northern cities will be seriously injured.

The difference is so great between the tariff of the Union and that of the Confederacy that the entire Northwest [present day Midwest] must find it to their advantage to purchase imported goods at New Orleans rather than New York. In addition, Northern manufacturers will suffer from the increased importations resulting from lower duties . . .”

More than a month before South Carolina started the secession trend and about two weeks after the election, outcome was known, the Boston Herald concluded on November 12, 1860: “[Should South Carolina secede] she will immediately form commercial alliances with European countries [that] . . . will help English manufacturing at the expense of New England. The first move the South would make would be to impose a heavy tax upon the manufacturers of the North, and an export tax on the cotton used by Northern manufacturers. In this way she would seek to cripple the North. The carrying trade, which is now done by American [Northern] vessels, would be transferred to British ships.”

(Causes of the Civil War, Philip Leigh, Shotwell Publishing, 2020, excerpt pp. 133-134)

From its formation from the ashes of the Whig party in 1856, the Republican party in less than 5 years drove the Southern States to secession and engulfed the country in a devastating war which destroyed the American republic of 1789.  This party was formed in violation of Washington’s solemn warning against the formation of geographical political parties which he knew would endanger the very existence of the Union.

Republicans to Restore the Good Old Days

“The Republican leaders sought to convince the Northern voter that there would be no just cause for secession in the event of the election of the sectional president: that the Southern leaders were only bluffing and were trying to intimidate the Northern voter into voting against the dictates of his conscience.

[William] Seward, the author of the “Irrepressible Conflict” oration, explained that “the South would never in a moment of resentment expose themselves to war with the North while they have such a great domestic population ready to embrace any opportunity to assert their freedom and inflict revenge.”

He further explained that the election of Lincoln would terminate the conflict he had prophesied – not begin it. “Vote for us,” he cried, “and you will have peace and harmony and happiness in your future years.” And again he said, “When the Republicans are in office, what may we expect then? . . . I answer, “No dangers, no disasters, no calamities . . . all parties will rejoice in the settlement of the controversy which has agitated the country and disturbed its peace for so long.”

However, the New York Herald openly accused Seward of “pussyfooting.” Seward, it asserted, was a “moderate anti-slavery man at Detroit, a radical abolitionist at Lansing, a filibusterer at St. Paul, and the Brother Seward of John Brown did not hesitate to claim to be a good conservative, Union-loving patriot in New York.”

The election of Lincoln, according to Salmon P. Chase, another of the Republican leaders, would mean a restoration of the good old days of concord and goodwill between the North and the South, Tranquility, liberty and Union under the Constitution.” [Horace] Greeley, the Republican editor whose paper had the largest circulation of any paper in the United States, solemnly assured his readers that the election of Lincoln would be like “oil on troubled waters and would promptly remove all sectional excitement.”

(The Peaceable Americans of 1860-1861: A Study in Public Opinion, Mary Scrugham, Columbia University, 1921, excerpt pp. 45-46)

Of the wartime and postwar Congress, shorn of Southern statesmen, author Richard Hofstadter wrote: “Before business learned to buy statesmen at wholesale, it had to buy privileges at retail.” Railroad promoters actively lobbied for land grants and other subsidies at every level of government, while choruses of Northern manufacturers demanded tariff protection from foreign competitors. The American Third Republic ended with war in 1861, waged against a new Southern agrarian republic seeking peace and prosperity for its people. With its war of independence lost, the South became a poor economic colony within a foreign political arrangement dominated by corporate interests allied with an all-powerful central government.

Dark Forces Unleashed by War

“After the Civil War several transcontinental railroads, all but the Great Northern the beneficiaries of federal land grants, were completed. Chastened by scandals connected with the government’s subsidization of these enterprises, Congress made no new land grants after 1871, but in the nostrils of many people the odor of something rotten – corruption and special, unwarranted privilege at the expense of the general public – lingered about the land-grant railroads for decades.

After the 1870s, growing numbers of huge manufacturing corporations, including such still-familiar firms as Standard Oil, Bethlehem, American Tobacco, and Armour, achieved prominence. People accustomed to dealing with small locally-owned firms had difficulty in reconciling themselves to an economy in which such corporate behemoths did much of the nation’s business.

The great corporations, known to contemporaries as “trusts” though only a few were every trusts in the strict legal sense, raised the specter of monopoly power in the market. American public opinion and legal tradition had long been hostile toward monopolies. Conspiracies in restraint of trade were unquestionably illegal under the common law.

Unsuccessful competitors complained bitterly that the “monopolists” were driving them to the wall. Customers frequently objected to real or imagined price discrimination. More than anything else, rate discrimination provoked the outrage of Midwestern shippers against the railroads. Often the criticism of a big corporation’s alleged monopoly power could be deflected by showing that the firm produced better products or services in growing volumes at ever lower prices.

But this defense, even if appropriate, did nothing to allay the charge that the great corporations subverted the democratic political process. “Corruption,” charged the Populists in the preamble to their platform of 1892, “dominates the ballot-box, the Legislatures, the Congress, and touches even the ermine of the bench.”  Henry B. Brown, an associate justice of the US Supreme Court, told the Yale law students in 1895 that “[b]ribery and corruption are as universal as to threaten the very structure of society.”

(Crisis and Leviathan: Critical Episodes in the Growth of American Government, Robert Higgs, Oxford University Press, 1987, excerpts pp. 80-81)

In an effort to forestall a Republican “Force Bill” designed to bring reconstruction horrors back to the postwar South, fourteen spokesmen that included Zebulon Vance, Robert Stiles and Bernard J. Sage undertook to explain the Solid South to what may be termed the New North. In April 1890 they published a symposium “Why the Solid South? Or Reconstruction and its Results,” designed to appeal to the self-interest of the North’s business class and a very clear recapitulation of what Reconstruction thus far “had cost in money, public morale and cultural retardation.”

An American Chamber of Horrors

“Hilary Herbert of Alabama, who served as editor, expressed . . . in a preface: “Its object is to show to the public, and more especially to the businessmen of the North, who have made investments in the South, or who have trade relations with their Southern fellow citizens, the consequences which once followed an interference in the domestic affairs of certain States by those, who either did not understand the situation or were reckless of results.”

There followed factual histories of Reconstruction in each of the ex-Confederate States, including West Virginia and Missouri, which also had suffered from the fraud, repression and vicious partisanship of the postwar settlement. All in all, it is one of the most dismal stories ever told, unrelieved by a single ray of light, unless a revelation of how much people can endure and how they will struggle to attain their hopes even in extremis be such.

Governor Vance of North Carolina in a particularly mild and philosophic chapter pointed out that during what was supposed to be a moral and political rebirth “the criminals sat in the law-making chamber, on the bench and in the jury-box, instead of standing in the dock.” It has become the fashion nowadays to regard Reconstruction as a kind of chamber of horrors into which no good American would care to look, but Governor Vance reminded his readers that no portion of our history better deserves study “by every considerate patriot.”

From the comparatively uneventful story of North Carolina’s experience, the chronicle moves on to the wild saturnalia of South Carolina, where amid riotous spending of public funds the State House was turned into a combination of saloon and brothel. Yet the ordeal of South Carolina was matched by that of Louisiana, where in four years’ time the incredible Warmoth regime squandered an amount equal to half the wealth of the State.

“Corruption is the fashion,” Governor Warmoth, an ex-soldier who had been dishonorably discharged from the Federal army, remarked with laudable candor. “I do not pretend to be honest, but only as honest as anybody in politics.”

(The Southern Tradition at Bay: A History of Postbellum Thought, Richard M. Weaver, George Core/M.E. Bradford, editors, Regnery Publishing, 1989, excerpts pp. 330-332)

The prewar national dominance of the North eventually gave rise to those who thought that economic and political measures were not sufficient to put the South on a par with the North. They saw that the only way the South could rid itself of subservience to the North was to leave the Union, and do so with the Founders’ Constitution.  The South’s attempts to reduce tariffs had been increased in 1842, and in 1846 with the help of a Southern president and secretary of the treasury, forced through Congress the Walker Tariff which was so low as to be practically revenue only.  Additionally, President John Tyler’s vetoes of a national bank were upheld by Southern votes in Congress.

Northern commercial interests were determined to reclaim their government subsidies and establish national banking, with Lincoln and his new party a convenient vehicle to permanent national dominance.

Paying Tribute to the North

“There were other methods by which the profits from the cotton crop found their way into Northern pockets. Since two-thirds of the cotton crop went to England, the freight charges on its transportation across the sea amounted to a large sum.  Although the river boats of the South were generally Southern-owned and Southern- built, the South never engaged in the building or operating of ocean-going ships, principally because capital could more profitably employed in agriculture.

Most of the cotton sold was carried on coastwise ships to New York, and the great part transshipped from that place to England. All the coastwise ships and most of the ocean-going shipping was Northern-owned and consequently the freight charges went into Northern pockets. In 1843 this amounted to nearly a million dollars. In addition the insurance costs while the cotton was in transit were generally paid to Northern firms.

Not only did the cotton growers pay “tribute” to the North through their exports, but through their imports as well. The imports to the South came through Northern ports; the exports of the South amounted to two-thirds the total of the United States but her direct imports were less than one-tenth. The freight charges to New York and Boston, the tariff duties, and the cost of transportation on coastwise vessels to the South all added to the cost of merchandise.

In the hard times of the forties, Southern economists were prone to find the explanation for their distress in the “tribute” paid to the North. They came to believe that the economic progress of the North depended on this “tribute,” and epitomized their opinion in the phrase “Southern wealth and Northern profits.”

By the phrase “operation of the federal government” the South meant bounties to New England fisheries, internal improvements in the North such as harbors, roads, canals, and public buildings, tariff duties, and deposits of government funds.”

(The Old South: The Geographic, Economic, Social, Political and Cultural Expansion, Institutions and Nationalism of the Antebellum South, R.S. Cotterill, Arthur H. Clark Company, 1939, excerpts pp. 192-199)

In the first Congress under the United States  Constitution, Josiah Parker of Virginia attempted to insert a clause in the Tariff Bill to levy a ten dollar tax on every slave brought into this country on foreign ships, and especially those of New England.  Parker was supported in this by two other Virginians, Theodoric Bland and James Madison.  In a March 1790 Virginia petition to Congress, the slave trade was denounced as “an outrageous violation of one of the most essential rights of human nature.”

In an unclean bargain to extend the slave trade until 1808, the commercial interests of New Hampshire, Massachusetts and Connecticut allied with South Carolina and Georgia rice planters – while Virginia strenuously protested. The slave traders of New England continued their nefarious traffic until the eve of the Civil War.

Virginia’s Efforts to Abolish the Slave Trade

“Despite Virginia’s failure to secure the immediate suppression of the foreign slave trade, her sons were active in their efforts to restrict its growth and at the earliest possible moment to drive the slave ships from the seas.

“ . . . James Madison [declared] . . . By expressing a national disapprobation of that trade it is hoped we may destroy it, and so save ourselves from reproaches and our posterity from the imbecility ever attendant on a country filled with slaves.”

In his message to Congress, at its session 1806-07, Mr. Jefferson, then President, brought to the attention of that body the fact that under the Constitution the time was at hand when the African slave trade could be abolished, and urged a speedy enactment of such a law. He said:

I congratulate you, fellow-citizens, on the approach of a period at which you may interpose your authority constitutionally to withdraw the citizens of the United States from all further participation in those violations of human rights which have so long been continued on the unoffending inhabitants of Africa, and which the morality, the reputation and the best interests of our country have long been eager to proscribe.”

[Later], In his message to Congress, December 5, 1810, President [James] Madison declares: “Among the commercial abuses still committed under the American flag . . . it appears that American citizens are instrumental in carrying on the traffic in enslaved Africans, equally in violation of the laws of humanity and in defiance of those of their own country.”

(Virginia’s Attitude Toward Slavery and Secession, Beverly Munford, L.H. Jenkins, 1909, excerpts pp. 33-35)

The US Marine Corps in 1861 had a total strength of 1,775, including 63 officers. Nineteen of these went South in 1861 to join the newly established Confederate States Marine Corps, and all were very well-informed on the Constitution they had sworn an oath to defend against enemies both foreign and domestic, especially the latter. The following are taken from the resignation letters of three officers: one Marine and two Navy.

“Going South”

After reading Lincoln’s inaugural address, Captain Robert Tansill, USMC explained his resignation from the US Marine Corps:

“In entering the public service, I took an oath to support the Constitution, which necessarily gives me the right to interpret it. Our institutions, according to my understanding, are founded upon the principle and right of self-government. The States, in forming the Confederacy [in 1789] did not relinquish that right, and I believe each State has a clear and unquestionable right to secede whenever the people thereof think proper, and the Federal Government has no legal or moral authority to use physical force to keep them in the Union. Entertaining these views, I cannot conscientiously join in a war against any of the States which have already seceded or may hereafter secede, either North or South, for the purpose of coercing them back into the Union . . .”

Officers of the highest rank were also dismissed summarily, particularly if they, like Captain Isaac Mayo, took the trouble to attack the Lincoln administration. Writing from his Maryland estate on May 1, he asserted:

“It was the hope of my old age that I might die, as I had lived, an officer in the Navy of a free Government. This hope has been taken from me. In adopting the policy of coercion, you have denied to millions of freemen the rights of the Constitution and in its stead you have placed the will of a sectional Party. What a spectacle to intelligent minds . . . I cannot fight against the Constitution while pretending to fight for it. You will therefore oblige me by accepting my resignation.”

Less high-minded and more sentimental was the resignation letter sent by Lieutenant James J. Waddell who was serving aboard the USS John Adams and who wrote from the island of St. Helena the following lines:

“The people of the State of North Carolina having withdrawn their allegiance to the Government of the late Confederacy of the United States . . . I return to ‘His Excellency the President of the United States,’ the Commission which appointed me a Lieutenant in the U.S. Navy . . . In thus separating myself from association which I have cherished for twenty years, I wish it to be known that no doctrine of the rights of secession, nor wish for disunion of the States impel me, but simply because my home is the home of my people in the South, and I could not bear arms against them.”

(Going South: US Navy Officer Resignations & Dismissals On the Eve of the Civil War, Naval Historical Foundation Publications, Series II, Number 27, Fall 1981, pp. 21-22)

The author below writes of the “well-dressed malingerer, the best educated, the most cunning, the most creative of the [Vietnam] generation, they live with their little secret: their citizenship came of age on a note of avoidance . . . which in turn bred a profound cynicism toward their responsibilities in a free society.”

This may be compared to the “well-dressed malingerers” of Northern society in the early 1860s who remained home, a few after tasting 90 days service, and realizing the resolve of their opponent seeking independence; then they avoided the draft with substitutes and paying for exemptions from physicians seeking extra income. They dug deep into their pockets as well for town, county, State and federal bounty money to pay the poor and recently-released criminals to take their place. They then applauded Lincoln for seizing dispossessed black Southern farmhands, and taught them to loot and burn Southern farms and towns, for “the Union.”

Victory Seals Union Theft and Destruction

“General Sherman had done the dirty work for the Union. To him had fallen the duty to break the spirit of the rebellion, to punish the rebels, whatever their sex or station. His unsparing, relentless hand had given the Union victory.

The dirty work of the Vietnam War was consigned to a small percentage of the Vietnam generation; the poor, the uneducated, and the youth who fought who were wounded, who died. Most of those who went to Vietnam, the studies show, saw moderate to heavy combat. It is only the glories of modern medical science and the speed of the helicopter that prevented the names on the Vietnam Memorial in Washington from being etched in much smaller print.

If the cruel charge of substitution is valid against any group, it is valid for the sixteen million who avoided Vietnam illegally. By their avoidance, the country had, de facto, reverted to the practice of the Civil War, where a man could buy a substitute. Had it not been for this overall turpitude, a Lt. William Calley could never have been an officer in the US Army.

Sherman’s dirty work ended in victory, and the victory swept away in the North any preoccupation with the manner of victory. Victory sealed over for the Union veteran his memory of theft or wanton destruction in Dixie.

In Vietnam, defeat and atrocity are fused. The wanton violence of Sherman’s bummer and Westmoreland’s grunt differs as looting differs from stealing, but neither time nor morals are static. The patterns of behavior in both armies were encouraged by the official policy and extended the rules of permissible conduct in the same degree.

The burning of Columbia and the slaughter at My Lai were exceptional only in their dimensions. The formal order for civilized behavior contrasted with the informal message toward atrocity in precisely the same way.”

(Sherman’s March and Vietnam, James Reston, Jr., MacMillan Publishing Company, 1984, excerpt pp. 167-168; 170)