Circa1865

As asserted below, Americans in general seem unaware of the enormity of the Southern experience 1861-1865 and the aftermath of devastating defeat and subjugation. The author’s analogy brings needed perspective to an unnecessary war and death of a million Americans, counting military and civilian casualties.

Bernhard Thuersam, www.Circa1865.com

Suppressing the Consent of the Governed

“Imagine America invaded by a foreign power, one that has quadruple the population and industrial base. Imagine that this enemy has free access to the world’s goods as well as an inexhaustible supply of cannon fodder from the proletariat of other countries, while America itself is tightly blockaded from the outside world.

New York and Cincinnati have been taken. For months, Boston and Chicago have been under constant siege, the civilian population driven from their homes. Enemy forces roam over large parts of the country burning the homes, tools and food of the noncombatants in a campaign of deliberate terrorism.

Nearly eighty-five percent of the nation’s able-bodied men (up to 50 years of age) have been called to arms. Battlefield casualties have run to 39 percent and deaths amount to half of that, far exceeding those from any other war.

On the other hand, the enemy, though its acts and domestic propaganda indicate otherwise, is telling the American population that it only wants peace and the restoration of the status quo antebellum. Lay down your arms and all will be as before. What would be our state of morale in such conditions? Americans have never suffered such misfortune, have they?

Alas, they have. This was the experience of the Southern people from 1861-1865 in their lost War for Independence.

How hard the Southerners struggled for independence from the American Empire has been, and continues to be, suppressed by a nationalist culture that can only wonder: How could any group possibly have dissented from the greatest government on earth? But a very large number of Americans did no consent that government (the regime, after all, was supposed to be founded on the consent of the governed).

They were willing to put their dissent on the line in a greater sacrifice than any large group of Americans has ever been called on to make. Until finally, as a disappointed Union officer quoted by [author Gary] Gallagher remarked: “The rebellion [was] worn out rather than suppressed.”

(An Honorable Defeat, Clyde Wilson, Chronicles, October 1998, pg. 28)

Author M.E. Bradford wrote that in America, “race (at last as far as the Negro is concerned) has proved to be an almost indestructible identity,” and has led to us stepping away from cherished liberties. He goes on that despite its ill-effect upon our original principles, it was predictable “that liberty, as our tradition understands the term, should begin to reassert its original hegemony, that the oldest of liberties honored among us – rights grounded in the fundament of English inheritance” shall return to favor, “though in new disguises.”

Bernhard Thuersam, www.Circa1865.com

Millennialism’s Fresh Set of Insoluble Dilemmas

“Jefferson’s fire bell sounded in the legislative darkness, tolling the “knell” of the Union he had so much helped to shape. After Missouri, States achieved full membership in the federal compact only after meeting federally determined prescriptions concerning the status of blacks within their boundaries – conditions not imposed upon the original thirteen and without real precedent in the Northwest Ordinance.

Predictably, Jefferson’s Union did die – in 1861. And in the latter stages of its ruin, the connection between blacks and American millennialism intensified. With Equality (capital E) the new Republic played some verbal and opportunistic games. I leave aside for the moment the merits and demerits of this “second founding.”

For, once completed . . . the Trojan horse of our homegrown Jacobinism was rolled away to some back stall within the stable of received American doctrines. Emancipation appeared to have changed nothing substantial in the basic confederal framework. Neither did it attempt any multiracial miracles.

Most certainly, New England has had its high expectations of a City on a Hill; likewise, even the South owed, from its earliest days, some inertia to a hope of Eden over the sea. Moreover, in company with the frontier States, both regions drew comfort from the idea of a “manifest destiny.” Yet the total nation has, characteristically, despised and rejected who or whatever aspired to dragoon its way to such beatitudes through the instruments of Federal policy.

The only full exception to this rule, I insist, is the “civil rights revolution” of the past thirty years. In connection with the difficult question of the Negro’s place within our social compact, an imperative was discovered, stronger than any ever pressed upon us before: there discovered because the Negro’s lot within that compact was so difficult (and so slow) to improve.

With it we have made fair to force the issue, even if liberty (and its correlatives: law, localism and personalism) loses much of its authority as a term of honor: is diminished especially insofar as it applies to that nondescript but substantial many who captain, man and propel the ship of state.

Of course, as Lenin wrote, the only way to make men equal is to treat them unequally. And Lenin’s advice does not function inside our curious native dialect. The only equality Americans can universally approve is accidental, a corollary of liberty or simple equality before a law with limited scope.

In 1820 . . . we took an initial step away from liberty; in 1861-1877, a few more. And from these examples, from our uneasiness at the – to the millennialist sensibility — greatest of built-in American “scandals,” in the post-World War II era we arrived at converting at least one feature of millennialism into a positive goal. To use the late William Faulkner’s idiom we set out to “abolish” the Negro we knew, both as a presences and a problem. The results begin to speak for themselves, the fresh set of insoluble dilemmas which, with each dawning day, cry out for more potent magic than the cures for yesterday’s injustice which spawned them into existence in the first place.”

(Remembering Who We Are; Observations of a Southern Conservative, M.E. Bradford, UGA Press, 1985, excerpts pp. 47-48; 50-51)

Lincoln infamously ignored Chief Justice Roger B. Taney’s order finding that the president held no constitutional authority to suspend the writ of habeas corpus – and, reportedly had drafted an order to arrest the Chief Justice. Though Taney would remain Chief Justice during most of the war, his Court was on notice that arrest and imprisonment awaited Lincoln’s dissenters.

Bernhard Thuersam, www.Circa1865.com

Lincoln and the Supreme Court

“The [Lincoln] administration would await no debacle, no breath-taking defeat at the hands of the Supreme Court. It could ill-afford such a calamity. It would move to make such a defeat less likely [and] it would be folly to permit Supreme Court decisions to add to the travail.

President Lincoln and the Republicans were now to decide, concerning the size of the Supreme Court, that the number “ten” was much more convenient than the number “nine.” Under the leadership of Representative James F. Wilson the committee on the judiciary reported to the house a bill to create a tenth circuit . . . [meaning] a tenth Justice. It was prudence that dictated a packed Court in order to strengthen the position of those Justices who would view with favor the acts that the administration deemed necessary.

Admittedly this was a moderate packing of the Court, but the tenth Justice in addition to the three other Lincoln appointees and other friendly Justices on the bench would provide an adequate margin of safety. So it was in the same days that the Prize Cases were being considered by the Court that Congress went about the task of creating . . . a tenth Justice. The Court could not fail to see the implications.

To pack it just at this time was a sharp warning that its size, its powers, and its role rested upon the will of the Congress and the President. There was no delay [in the appointment]. The Senate, deeming that swift action was necessary, passed the bill the same day that it took up consideration of it.

Keep[ing] the power of the Court “right.” That was the strongest motivation for adding a tenth justice . . . during the Civil War. Senator Garrett Davis of Kentucky stated on the floor of the Senate on January 14, 1868, that the Radicals forced the creation of the tenth justiceship.

The power of the government to defend itself would be questioned again before the Supreme Court, and a tenth Justice would at least make certain “that questions of the power of government to suppress rebellion would not come before a Court too hopelessly weighted on the side of the old-line Democratic view of public policy.” The Supreme Court had to be removed as a factor potentially dangerous to the Union. A Congress and a President that had experience the debacles of 1862 would not stand idly by to experience disaster at the hands of the Supreme Court.”

(Lincoln’s Supreme Court, David M. Silver, University of Illinois Press, 1998, pp. 84-88)

Clearly defined in the United States Constitution is this: “Treason against the United States, shall consist only of Levying war against them, or in adhering to their Enemies, giving them Aid and Comfort . . .” Note the word “them” – not the United States collectively, and that John Brown was convicted of treason against Virginia.  Though Lincoln’s predecessor did not agree with secession, he saw no constitutional authority to coerce a State, and knew that to wage war against a State was treason. Lincoln had no such inhibitions. The following is excerpted from a letter from Jefferson Davis to Mississippi newspaper publisher and war veteran J.L. Power, dated June 19, 1884.

Bernhard Thuersam, www.Circa1865.com

A Palpable Violation of the Constitution

“Dear Sir,

[From] the statement in regard to Fort Sumter, a child might suppose that a foreign army had attacked the United States – certainly could not learn that the State of South Carolina was merely seeking possession of a fort on her own soil, and claiming that her grant of the site had become void.

The tyrant’s plea of necessity to excuse despotic usurpation is offered for the unconstitutional act of emancipation, and the poor resort to prejudice is invoked in the use of the epithet “rebellion” – a word inapplicable to States generally, and most especially so to the sovereign members of a voluntary union. But, alas for their ancient prestige, [the States] have even lost the plural reference they had in the Constitution . . . Such language would be appropriate to an imperial Government, which in absorbing territories required the subject inhabitants to swear allegiance to it.

Ignorance and artifice have combined so to misrepresent the matter of official oaths in the United States that it may be well to give the question more than a passing notice. When the “sovereign, independent States of America,” formed a constitutional compact of union it was provided in the sixth article thereof that the officers “of the United States and of the several States shall be bound by oath or affirmation to support this Constitution . . .”

That was the oath. The obligation was to support the Constitution. It created no new obligation, for the citizen already owed allegiance to his respective State, and through her to the Union of which she was a member.

The conclusion is unavoidable that those who did not support, but did not violate the Constitution, were they who broke their official oaths.

The General Government had only the powers delegated to it by the States. The power to coerce a State was not given, but emphatically refused.

Therefore, to invade a State, to overthrow its government by force of arms, was a palpable violation of the Constitution, which officers had sworn to support, and thus to levy war against States which the Federal officers claimed to be, notwithstanding their ordinances of secession, still in the Union, was the treason defined in the third section of the third article of the Constitution, the only treason recognized by the fundamental law of the United States.

By all that is revered in the memory of our Revolutionary sires, and sacred in the principles they established, let not the children of the United States be taught that our Federal Government is sovereign; that our sires, after having, by a long and bloody war, won community independence, used the power, not for the end sought, but to transfer their allegiance, and by oath or otherwise bind their posterity to be the subjects of another government, from which they could only free themselves by force of arms.”

Respectfully, Jefferson Davis”

(Jefferson Davis, the Essential Writings, William J. Cooper, Jr., editor, Modern Library, 2003, excerpts, pp. 431-432)

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)

Like other Old Right conservatives (rightly said to be the spiritual descendants of antebellum Southern conservatives), Robert A. Taft looked askance at the newly-discovered “civils rights” and saw the Constitution as controlling any and all civil liberties. The likely 1948 and 1952 presidential candidate of the GOP, he was thrust aside by the developing liberal wing of that party in favor of Thomas Dewey and Dwight Eisenhower.  The same liberal wing of the GOP helped defeat conservative Barry Goldwater’s presidential run in 1964.

Bernhard Thuersam, www.Circa1865.com

Conservative Robert A. Taft

“In 1945 he voted against a compulsory federal Fair Employment Practices Committee, declaring that “Race prejudice is a deplorable thing . . . but I don’t believe it is possible to legislate human prejudice out of existence. This seems to me an interference by Federal Government in millions of employer-employee relationships – the regulation of business and individual life. I particularly object to giving some Federal board power to pass on the motives of the employer, a fact almost impossible to determine in most cases . . .”

Taft . . . in an address to the colored students of North Carolina College . . . told his audience that the “control of education under our Constitution is in the jurisdiction of the States and not of the Federal Government. As long as States provide equal educational facilities for white and colored children in the primary schools, I do not think the Federal Government has the constitutional power to require a State to change its established system of education.”

This qualification was not calculated to please the audience. Taft’s position was that if qualitative equality of segregated schools existed in fact, then the federal government possessed no constitutional authority to intervene; presumably he would not have assented to Chief Justice Earl Warren’s later decision that “separate educational facilities are inherently unequal.”

Negroes interested in politics generally were friendly toward Senator Taft. One colored citizen of Ohio remarked, “Our Senator Taft’s record is wonderful . . . Senator Taft is not pro-Negro. He is not pro-white. He is not pro-labor, nor pro-management. The man has some strange passion for justice. He is not trying to win our votes so much as he is trying to do what is right.”

Asked to explain his general position on civil rights, Taft replied that civil liberties could be understood only in the context of the Constitution; therefore an unqualified endorsement of Negro claims, in the abstract, was impossible for him.

“Broadly speaking,” he continued, “the question is whether I feel that the Federal Government should intervene to protect individuals in their constitutional rights against the actions of other individuals and State and local governments.” He believed that the federal authorities should intervene when such action was clearly sanctioned by the Constitution.

(The Political Principles of Robert A. Taft, Russell Kirk, James McClellan, Fleet Press, 1967, pp. 74-76)

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)

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)