Circa1865

The responsibility for the death of nearly one million Americans, considering death by combat, disease and starvation, military and civilian, must be laid at the feet of those like Charles Sumner of Massachusetts. Unwilling to compromise for the sake of peace and Union, his incessant insults against Americans in the South reached their climax in his attack upon Senator Andrew P. Butler of South Carolina. Senator Cass of Michigan delivered the official rebuke to Sumner, stating that “such a speech [was] the most un-American and unpatriotic that ever grated on the ears of the members of this high body – I hope never to hear again here or elsewhere.” For that verbal insult upon Senator Butler, Sumner received well-deserved gutta-percha punishment.

Bernhard Thuersam, www.Circa1865.com

No Compromise for Charles Sumner

“Of all the earnest, high-minded men and women who helped to drive a wedge between the North and the South during the years between the Mexican War and the Civil War, no one was more bent on forcing the issue than the famous senator from Massachusetts, Charles Sumner.

[An advocate of pacifism, in his] first important speech of his life, a patriotic address delivered in Tremont Temple on July 4, 1845, he had astounded his audience, accustomed to a conventional recital of the stirring deeds of the Revolution, by denouncing in scathing terms the misguided patriotism which glorified deeds of [the Mexican] war.

Sumner drove his point home by comparing the cost to the nation of the [USS] Ohio, a ship-of-the-line then lying in Boston Harbor, with the annual expenditure of Harvard College. It was not a tactful speech considering that the officers of the Ohio had been specially invited to grace the occasion, but then Charles Sumner was not a tactful man.

His lack of tact was as notorious as his lack of humor or his unconscious arrogance. Unlike most of the political figures of his generation, he was very much at home in Europe. Sometimes he wearied his friends at home by telling them of all the distinguished people he had met abroad in the course of his travels and yet, beneath the European veneer, there was a moral fervor about Sumner, a “sacred animosity” against evil, to quote his own words, that stamped him unmistakably as a New Englander.

In 1849, as Chairman of the Peace Committee of the United States, he had issued an address recommending that an American delegation attend the Second General Peace Congress to be held in Frankfort. Representatives of the leading nations of Europe were to present plans for the revision of international law and for the establishment of a World Court.

Sumner, who was known as one who believed that war was an outdated method of settling disputes, was chosen as one of the delegates to the Congress, but at the last moment he declined.

[T]here was something ironic in the fact that the champion of arbitration in 1850 stood out resolutely against sending any delegates from Massachusetts to [former President John Tyler’s] Peace Convention held in Washington on the eve of the war [in 1861]. In his frantic search for a compromise, Senator [John J.] Crittenden found no one more stubborn, more determined not to yield an inch, than Senator Sumner. [Sumner] . . . insisted that concessions [to the South] would settle nothing. “Nothing,” said Sumner, “can be settled which is not right. Nothing can be settled which is against freedom. Nothing can be settled which is against divine law.”

(No Compromise!, Arnold Whitridge, Farrar, Straus and Cudahy, 1960, pp. 120-126)

The colony of Massachusetts was the first to codify slavery in its law in 1641, three years after the first ship brought Africans from the West Indies. The defiant Pequot Indians enslaved by the Puritan settlers were often traded for Africans who made better workers. Massachusetts became preeminent in the transatlantic slave trade, shipping rum and Yankee notions to be used to buy slaves from African tribes. Senator Sumner seemed unaware of his State’s history.

Bernhard Thuersam, www.Circa1865.com

A Slippery Senator from Massachusetts

“Extracts from the debate between Senators Charles Sumner and Andrew P. Butler in June, 1854, beginning on page 1.013 of the Appendix to the Congressional Globe, First Session, Thirty-third Congress:

Mr. Sumner: “Sir, slavery never flourished in Massachusetts; nor did it ever prevail there at any time, even in the early Colonial days, to such a degree as to be a distinctive feature of her powerful civilization. And let me add that when this Senator [Butler] presumes to say that American Independence was won by the arms and treasure of slave-holding communities, he speaks either in irony or ignorance.”

Mr. Butler: “When the Declaration of Independence was made, was not Connecticut a slave-holding State?”

Mr. Sumner: “Not in any just sense.”

Mr. Butler: “Sir, you are not the judge of that. Was not New York a slave-holding State?”

Mr. Sumner: “Let the Senator [Seward] from New York answer that.”

Mr. Butler: “Sir, if he answers, he will answer the truth, and perhaps it might not be exactly agreeable to you. Was not New Jersey a slave-holding State? Was not Rhode Island a slave-holding State?

Mr. Seward: “It is due the honorable gentleman from South Carolina that I should answer his question in reference to New York, since it has been referred it to me. At the time of the Revolution, every sixteenth man in the State of New York was a slave.”

Mr. Butler: “Was not New Hampshire a slave-holding State? Was not Pennsylvania a slave-holding State? Was not Delaware a slave-holding State?

Mr. Seward: “I am requested to make my answer a little more accurate, according to the truth. I understand, that at the time of the Revolution, every twelfth man in New York was a slave.”

Mr. Butler: “They can afford no refuge for historical falsehood such as the gentleman [Sumner] has committed in the fallacy of his sectional vision. I have shown that twelve of the original States were slave-holding communities.

Now sir, I prove that the thirteenth, Massachusetts, was a slave-holding State before, and at the commencement of, the Revolution. As to the character of slavery in that State, that may be somewhat a different thing, which can not contradict the fact stated in the newspapers of the day, that Negroes were held, were advertised for sale, with another truth, that many were sent to other slave-holding States in the way of traffic.

When slavery was abolished [in Massachusetts], many that had been slaves and might have been freemen were sold into bondage.”

Mr. Sumner: “By slave-holding States, of course, I mean States which were peculiarly, distinctively, essentially slave-holding, and not States which the holding of slaves seems to have been rather the accident of the hour, and in which all the people, or the greater part of the people, were ready to welcome emancipation.”

Mr. Butler: “Mr. President, I think the remarks of the Senator verify exactly what I said, that when he chooses to be rhetorical, it is upon an assumption of facts, upon his own construction, and by an accumulation of adjectives.”

(The Case of the South Against the North, B.F. Grady, Edwards & Broughton, 1899, 225-226)

After South Carolina Congressman Preston S. Brooks administered a lesson to Charles Sumner, senator from the slave-trading State of Massachusetts, Brooks received new canes from all over the South. The canes were accompanied by emphatic suggestions that he promptly deliver additional beatings on Sumner for the insults toward his uncle and distinguished Senator Andrew P. Butler. Sumner feigned injury to attract sympathy from abolitionist newspapers.

Bernhard Thuersam, www.Circa1865.com

Sumner’s Rendezvous With a Gutta-Percha

“From the moment he took his seat in the Senate, Sumner’s conscience was always on parade. [And] according to Sumner, the Constitution did not sanction slavery, and since slavery was a monstrous evil it should be eliminated at once.

Freedom was national whereas slavery was only sectional.  In the official view of the South, which incidentally coincided with that of the Garrisonians, the founding fathers had expressly guaranteed slavery along with other forms of personal property.  Far from being a national evil, it was a national benefit, to the Negro as much as to the white man.

Sumner seized upon the controversy over Kansas, whether the territory was to come into the Union as a free or as a slave State, to pronounce what he called “the most thoroughgoing philippic ever uttered in a legislative body.”  It was an elaborate speech and it took five hours to deliver.

For those who expected an accurate presentation of the facts about Kansas it was a disappointment, but Sumner’s conscience was never concerned with facts unless the facts bore on the depravity of slaveholders. Sumner’s conscience directed him to pour more oil on the fire rather than water.

He began by assuming the truth of every charge made against the slave power in Kansas, and ignoring all the evidence on the other side. Major John Sedgewick, who was stationed in Kansas at the time . . . thought that most of the atrocities had been committed by the [Northern] Free Soil party, but any such evidence, even if it had come his way, Sumner would have brushed aside as the ravings of a lunatic.  He had prepared his speech with infinite pains, committed it to memory, practiced it before the glass, and nothing would induce him to alter it.

The crime against Kansas was nothing less than “the rape of virgin territory compelling it to the hateful embrace of slavery.” The criminal (slave power) has “an audacity beyond that of Verres, a subtlety beyond that of Machiavelli, a meanness beyond that of Bacon, and an ability beyond that of Hastings.”

The long string of erudite insults reached their climax in an attack upon the much beloved Senator Butler of South Carolina who, said Sumner, “has chosen a mistress to whom he has made his vows and who, although ugly to others, is always lovely to him; although polluted in the sight of the world, is chaste in his sight — I mean the harlot, Slavery.”

That Sumner honestly thought he was serving the cause of freedom by such language is hard to believe. Senator Cass of Michigan, a devoted Union man and not a slaveholder, delivered the official rebuke: “Such a speech — the most un-American and un-patriotic that ever grated on the ears of the members of this high body — I hope never to hear again here or elsewhere.”

While Senators were shaking their heads . . . Sumner was suddenly transfigured into a national hero, a martyr for freedom. The man responsible for this . . . was a Southerner, Congressman Preston S. Brooks of South Carolina, a nephew and a devoted admirer of Senator Butler.

[And] Brooks had made up his mind that the only suitable answer to Sumner was severe corporeal punishment. Accordingly, while Sumner was sitting at his desk after the Senate had adjourned, Brooks strode up to him and . . . struck him over the head with a gutta-percha cane.

How severely Sumner was injured has always been a matter of dispute, but by the time Brooks had finished his chastisement Sumner was lying on the floor unconscious. Southerners accused Sumner of shamming.

The doctor who attended him took four stitches in his scalp and declared him ready to return to duty after a few days of rest. [Sumner] complained of perpetual headache and nervous prostration, but Southerners pointed out that during a trip to Europe to recover his health he indulged in a continuous round of social entertainments that might well have reduced any traveler to a state of exhaustion.”

(No Compromise!, Arnold Whitridge, Farrar, Straus and Cudahy, 1960, pp. 125-127)

Camp Butler near Springfield, Illinois was a death camp for Southern prisoners in 1862 and 1863. With medical supplies almost nonexistent, malnutrition, dysentery, typhus and pneumonia ravaged the camp and in late 1862, over seven hundred Southern prisoners died in a smallpox epidemic.

Bernhard Thuersam, www.Circa1865.com

Death and Robbery Await Prisoners

“At Arkansas Post, January 11, 1863 the whole command to which I was attached was captured, and we were all sent to [the Northern prison] Camp Butler, near Springfield, Illinois, where we were imprisoned for about three months.

The rigors of winter in that latitude, against which our thin Southern clothing afforded us insufficient protection, prostrated nearly all of us with diseases; but in a short time a supply of blankets and woolen clothing came to us from some ladies of Missouri and Arkansas, and improved our condition very much.

Prison life was rather monotonous; but there was occasionally a little stir among us produced by an exhibition of authority by a small fellow called Colonel [William F.] Lynch, who was our master.

On one occasion he had us rush out of the barracks and into line, and while one of his set of  underlings were searching our sleeping places — for “spoons,” perhaps — another set were searching our persons for money. On another occasion a detail of us, including myself, were ordered out by this little tyrant to shovel snow out of his way — not out of ours.

And when we got on the [railroad] cars to leave the place, he sent men through each coach with orders to rob us of everything we had except what we had on our backs and one blanket apiece.”

(The Case of the South Against the North, Benjamin Franklin Grady, Edwards & Broughton, 1899, pp. x-xi)

Jefferson Davis referred to Lincoln’s proclamation of emancipation in early 1863 as affording “our whole people the complete and crowning proof of the true nature of the designs of the party which elevated to power the present occupant of the Presidential chair at Washington and which sought to conceal its purpose . . .” Davis, like others familiar with the United States Constitution, saw that only the individual States could emancipate, not the government created by the States. And waging war upon the States was an act of treason under that same Constitution.

Bernhard Thuersam, www.Circa1865.com

For What are They Waging War?

January 5, 1863

“Friends and Fellow Citizens . . .

I am happy to be welcomed on my return to the Capital of our Confederacy – the last hope, as I believe, for the perpetuation of that system of government which our forefathers founded – the asylum of the oppressed and the home of true representative liberty.

Anticipating the overthrow of that Government which you had inherited, you assumed the right, as you fathers had done before you, to declare yourselves independent, and nobly have you advocated the assertion which you have made. You have shown yourselves in no respect to be degenerate sons of your fathers.

Men who were bound to you by the compact which their fathers and themselves had entered into the secure to you the rights and principles not only guaranteed by the Declaration of Independence, but rights which Virginia wisely and plainly reserved in her recognition of the government in which she took a part, now come to you with their hands steeped in blood, robbing the widow, destroying houses, seizing the grey-haired father, and incarcerating him in prison because he will not be a traitor to the principles of his fathers and the land that gave him birth.

Every crime which could characterize the course of demons has marked the course of the invader. The Northern portion of Virginia has been ruthlessly desolated – the people not only deprived of the means of subsistence, but their household property destroyed, and every indignity which the base imagination of a merciless foe could suggest inflicted, without regard to age, sex or condition.

In like manner their step has been marked in every portion of the Confederacy they have invaded.

They have murdered prisoners of war; they have destroyed the means of subsistence of families, they have plundered the defenceless, and exerted their most malignant ingenuity to bring to the deepest destitution those who only offence is that their husbands and sons are fighting for their homes and their liberties. Every crime conceivable, from the burning of defenceless towns to the stealing of our silver forks, and spoons, has marked their career.

It is in keeping, however, with the character of the people that seeks dominion over you, claim to be your masters, to try to reduce you to subjection – give up to a brutal soldiery your towns to sack, your homes to pillage and incite servile insurrection.

They have come to disturb our social organizations on the plea that it is military necessity. For what are they waging war? They say to preserve the Union.

Can they preserve the Union by destroying the social existence of a portion of the South? Do they hope to reconstruct the Union by striking at everything which is dear to man? BY showing them so utterly disgraced that if the question was proposed to you whether you would combine with hyenas or Yankees, I trust every Virginian would say, give me the hyenas.”

(Jefferson Davis, the Essential Writings, William J. Cooper, Jr., editor, Modern Library, 2003, excerpts, pp. 285-287)

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)

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)

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)