Circa1865

Below, John Randolph Tucker reviews the constitutional issues which brought war 1861-1865, and poses the question:

“Was slavery so bad that the Constitution which shielded it, was violated in order to destroy it? That is the question which has been answered by the roar of artillery in the affirmative. But can that answer by force be justified in the forum of morals? If a solemn compact can be violated in order to destroy that which the compact guaranteed, what value is there in a written Constitution? It only awaits a new fanatical sentiment to justify a new crusade upon its integrity.” 

That Was the Problem We Inherited

“The [North’s] crusade not only destroyed slavery but entailed upon the South a social condition for which the crusaders suggest no relief, and a condition which seems to be without the hope of peaceful solution. Those who had no interest in the relation [of black and white] have inoculated the South with a social and political disease for which their statesmen have provide no remedy and can find no panacea. These were the issues upon which the Southern States seceded, and defended their imperiled rights with a valor, constancy and fortitude which has made them immortal.

We cannot be placed in the false position of having fought to hold men in slavery. The American South never made a free man a slave and never took from Africa one human being to shackle him with servitude. The South inherited the institution which had been put upon us by the cupidity of European and New England slave traders against the protests of our colonial fathers. That was the problem we inherited.

Shall they remain slaves and how long? Or be at once emancipated and then be put into possession of equal power with the white man to direct a common destiny?

Shall our constitutional power, our inherent natural right to regulate this special interest, be wrested from us and vested in aliens to that interest, to be exercised by them to create social and political relations never known in the history of civilized man, and for the right regulation of which no prophecy could forecast a law, and our sad experience has been unable to devise a remedy? To put it forensically, the South did not plead to the issue of slavery or no slavery, but to the proper jurisdiction. To create the jurisdiction was to, by force, give up self-government.

Let no censorious criticism suggest a doubt of our faithful devotion to the Constitution and Union of today because we honor and revere the patriotism of those who died for the lost cause of political independence. The heroic purpose failed; our Confederacy sank beneath the political horizon in clouds which could not blacken history.  The sun of the Confederacy illuminated them of its own transcendent glory. The fame of its American heroes, of their genius for leadership, of their fortitude, marital prowess and devotion to duty, all Americans will one day claim to be the common heritage of the Union.”

(Address of John Randolph Tucker, Vanderbilt University, June 1893, (excerpt). Confederate Veteran, August 1893, pg. 238)

Correcting the Record

“The Jackson (Mississippi) Clarion prints the following letter:

Beauvoir, Mississippi

June 20, 1885

Dear Sir, – Among the less-informed persons at the North there exists an opinion that the negro slave at the South was a mere chattel, having neither rights nor immunities protected by law or public opinion. Southern men knew such was not the case, and others desiring to know could readily learn the fact.

On that error the lauded story of Uncle Tom’s Cabin was founded, but it is strange that a utilitarian and shrewd people did not ask why a slave, especially valuable, was the object of privation and abuse? Had it been a horse they would have been better able to judge and would most probably have rejected the story for its improbability. Many attempts have been made to evade and misrepresent the exhaustive opinion of Chief Justice Taney in the ‘Dred Scott’ case, but it remains unanswered.

From the statement in regard to Fort Sumter, a child might suppose that a foreign army had attacked the United States – [and] 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 the States generally, and most especially so to the sovereign members of a voluntary union. But alas for their former 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.”

(Letter from President Davis on States’ Rights. Southern Historical Society Papers. Vol. XIV, January – December 1886, Rev. J. William Jones, D.D., pp. 408-409)

Below, Alexander Stephens explains the original intent of citizenship of the United States being first State citizenship. Stephens wrote the following from a Fort Warren jail cell after his arrest in 1865 for an unknown crime.

Citizenship as Intended

“Eight weeks today [July 6, 1865] I have been a prisoner; six weeks in this place; all without the slightest intimation of the cause. Seized by an armed force, sent here by an armed force, kept in close confinement, guarded by an armed force, deprived of all means of appealing to judicial power for redress; and yet Eagle-orators and reverend rhetoricians scream and shout about the glorious freedom we Americans enjoy.

PM – [A newspaper] article on naturalization in the cyclopedia attracted my attention. It is strange what errors have crept into vogue and pass without scrutiny or question, especially on naturalization and its sequence, citizenship of the United States. The subject is treated as if Congress were empowered by the Constitution to confer upon aliens’ citizenship of the United States distinct from citizenship of particular States and Territories.

The truth is, Congress has no power to naturalize or to confer citizenship of the United States. Its only power is to establish a uniform rule to be pursued by the respective States and Territories on admitting aliens to their own citizenship.

Before the Constitution was adopted, each State possessed the right as an Independent Sovereign Power to admit to citizenship whom she pleased, and on such terms as she pleased. All that the States did on this point in accepting the Constitution was to delegate to Congress the power to establish a uniform rule so that an alien might not be permitted to become a citizen of one State on different terms from what might be required in another; especially, as in one part of the Constitution it is stipulated that the citizens of each State shall be entitled in all the rest to the rights and privileges of their citizens.

But no clause of the Constitution provides for or contemplates citizenship of the United States as distinct from citizenship of some particular State or Territory. When any person is a citizen of one of the States united, he thereby, and thereby only, becomes and can be considered a citizen of the United States.

Errors in the public mind on this question are radical and fundamental and have the same source as many others equally striking.

I was first struck with these on the annexation of Texas. How could her representatives, it was asked, take their seats in Congress, not having been citizens of the United States for the term of years required by the Constitution? The answer, upon the true principles of the Constitution and the only citizenship it contemplates, was plain: members and senators could not present themselves until the State was itself one of the United States; then, whoever might present himself as a member, having been seven years a citizen of Texas, would, in the terms and meaning of the Constitution, have been seven years a citizen of the United States, so constituted.”

(Recollections of Alexander H. Stephens: His Diary While Imprisoned. Myra Lockett Avary, ed., LSU Press, 1998 (original 1910), pp. 312-313)

Both Thomas Jefferson and John Madison feared the Adam’s administration’s “Alien and Sedition Acts” and agreed that these should be attacked on the grounds of their unconstitutionality. A stern response should emanate from State legislatures, and those opposing the “Acts” had to do so anonymously to avoid arrest. To Jefferson especially, it was federal power that represented a clear and present danger as would be the case some 63 years later.

States Above Federal Authority  

“John Breckinridge, who would later become Thomas Jefferson’s Attorney General, authored resolutions in 1798 which opened with ‘the American States were not united on the principle of unlimited submission to their government.’ And there was nothing startling about at that time in his reference to the Constitution as a compact between States, for this view of it was widely held.

Jefferson, remaining in the background, did not say, as Calhoun did later, that sovereignty was indivisible and remained with the States. The abstract question of sovereignty probably did not greatly interest him. He took the position which Madison well-described a few months later: “The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind, and at no time, perhaps, more necessary than the present.” At this moment Jefferson would not have used the word “perhaps” . . . with him the essential truth was the sovereignty of the people, and the reality as he saw it was that the people lived in the several States and could express themselves more readily through State action.

Regarding constitutions as shields against arbitrary power, he was disposed to interpret all of them strictly. In construing the federal constitution strictly, however, he was pursuing no solitary course: he was quite in line with the Republican spokesmen in Congress.”

(Jefferson and the Ordeal of Liberty; Volume III. Dumas Malone. Little, Brown and Company, 1962, pp. 402-403)

The following is noted as “a summary of the report made by Tyler to Virginia Gov. Letcher on his return from Washington. The text of this report, with the letters passing between Tyler & Buchanan, was published in the Richmond Daily Dispatch, February 1861.”     The fortress was built to protect Virginia, not wage war upon it.

American Citizens Targeted

“Tyler left Washington on January 29 with the expectation of returning to the Washington Peace Convention, which was to assemble on February 4. On the day before leaving, he sent another letter to President James Buchanan, in lieu of a call which other engagements prevented. In this letter he expressed appreciation of the courtesies that had been shown him and pleasure at hearing the President’s message read in the Senate.

Tyler’s letter also spoke of a rumor that at Fortress Monroe the cannon had been put on the landward side and pointed inland. His comment of this report was “that when Virginia is making every possible effort to redeem and save the Union, it is seemingly ungenerous to cannon leveled at here bosom.”

To this letter Buchanan sent a very courteous reply, stating that he would inquire into the rumors with reference to Fortress Monroe’s cannon.”

(John Tyler, Champion of the Old South. Oliver Perry Chitwood. American Political Biography Press, 1939 – pg. 438)

The Washington Peace Conference was urged on by Southern States as a last-ditch effort to salvage political union with the north through compromise – and they could rightly be referred to as the true “Unionists.” Working against Southern efforts for peace was Lincoln, who feared any compromise would weaken his minority party and limit his power.

Party Above Union

Early in the session (February 7^th) the Washington Peace Conference paid its respects to the outgoing President James Buchanan as a body. The members were received in the East Room of the White House and presented to the Buchanan by former-President John Tyler.

A similar courtesy was extended to Lincoln when he arrived in Washington on February 23^rd. As Tyler presented several distinguished delegates to him, Lincoln made brief comments, some of which were of a jocular character. His humor, however, was not particularly happy and hardly in keeping with the occasion. It may be said that Lincoln was using this method to ward off any embarrassing questions that might be asked. If this were his object, he was successful, as no commitments were made.

The strained amenities and the simulated courtesies exchanged between the ex-President and the President-elect were in the nature of a little drama typifying the end of one era and the beginning of another. Or, it might be regarded as a pleasing, trivial curtain raiser to that awful tragedy that marked the transition from the Second to the Third Republic. For the Second Republic was soon to undergo the pangs of death and the Third Republic to experience the painful throes of birth.

There was also the striking contrast in the personalities of the two men. In the case of Lincoln, tradition has so exaggerated his virtues and covered up his faults that one of the most human characters in history has been idealized into a demigod. With Tyler, on the other hand, his virtues have been so minimized and defects so magnified that the reputation of a refined and well-meaning gentleman has been handed down to us as that of a wicked renegade.”

(John Tyler: Champion of the Old South. Oliver Perry Chitwood. American Political Biography Press. 1939, pp. 448-449)

The political development of the United States has passed through three stages since independence from England. The stages are characterized as those of the First Republic (1776-1789); the Second Republic (1789-1861); and the Third Republic (since 1861).

Lincoln’s Great Blunder

“Former-President John Tyler wrote his wife the day after Virginia’s withdrawal from the 1789 Constitution.

“The die is cast and Virginia’s future is in the hands of the god of battle.” The contest will be one full of peril, but “there is a spirit abroad in Virginia which cannot be crushed until the life of the last man is trampled out. The numbers opposed to us are immense; but twelve thousand Grecians conquered the whole power of Xerxes [Darius] at Marathon, and our fathers, a mere handful, overcame the enormous power of Great Britain. Do, dearest, live as frugally as possible in the household, – trying times are before us.”

Tyler regarded the conflict between the North and the South as a great blunder, the chief blame for which must be laid at the door of Lincoln. For by reinforcing Fort Sumter, he had brought on a clash which could have been avoided. Lincoln had made the terrible mistake of “having weighed in the scales the value of a mere local fort against the value of the Union itself.” He even accused the new president of acting not from patriotic motives but from a desire to consolidate behind him his faction of the Republican party.

The South, he implied, was justified in its attack on Fort Sumter. “If the Confederate States have their own flag, is anyone so stupid as to suppose that they will suffer the flag of England or France or of the northern States to float over the ramparts in place of their own?

As Tyler believed in the sovereignty of the States, he considered that under existing circumstances secession was legal and coercion revolutionary. The breakup of the union was not caused by the secession of the South but by the nullification practiced by the North. The latter section’s disregard of the fugitive slave law, its rejection of decision of the United States Supreme Court, and the commission of other unconstitutional acts had really destroyed the union of 1789. If there was any rebellion involved in this dissolution of the partnership, the “rebels” were not the Southerners, but the Northerners.

For the former had been true to the principles of the Constitution and the latter had violated them. The North had thus pulled down the house and the South had only left its ruins.”

(John Tyler: Champion of the Old South. Oliver Perry Chitwood. American Political Biography Press. 1939, pp. 455-456)

Independence the Fulfillment of American Nationalism

“The nationalist movement with which the American Confederacy most frequently identified with was- paradoxically yet logically – the American War of Independence. A central contention of Confederate nationalism, as it emerged in 1861, was that the South’s effort represented a continuation of the struggle of 1776.

The South, Confederates insisted, was the legitimate heir of the American revolutionary tradition. Betrayed by Yankees who had perverted the true meaning of the Constitution, the revolutionary heritage could be preserved only by secession. Southerners portrayed their drive for independence as the fulfillment of American nationalism.

Evidence of this self-image abounded in the new nation. The figure of Virginian George Washington adorned the Confederacy’s national seal and one of the earliest postage stamps; Jefferson Davis chose to be inaugurated at the base of a statue of Washington on the latter’s birthday in 1862; a popular ballad hailed the new president as “our second Washington.”

Songsters used by soldiers and civilians alike were filled with evocations of past glories such as the battles of Cowpens and Yorktown – events, like the figure of Washington himself, at once American and Southern.

“Rebels before,

Our fathers of yore, Rebel’s the righteous name Washington bore.

Why, then, be ours the same.”   

(The Creation of Southern Nationalism: Ideology and Identity in the Civil War South. Drew Gilpin Faust. LSU Press, 1988. Pp. 14-15)

Robert E. Lee gained his fundamental understanding of the US Constitution while at West Point, that the States were superior to their federal agent in Washington. It is important to note that the word “union” first appears in the “Articles of Confederation and Perpetual Union” (which 11 of the 13 States seceded from in 1787).  Two additional States seceded two years later. The 1789 Constitution’s text was prefaced with “We the people of the United States, in order to form a more perfect Union . . .” The 1861 Constitution of the Confederate States of America began: “We the People of the Confederate States, each acting in its sovereign and independent character, in order to form a permanent federal government . . .”

No Other Course but Dishonor

“Among Lee’s professors at West Point was the distinguished jurist William Rawle, a Pennsylvanian and author of A View of the Constitution of the United States of America (1829), a book that formed the basis of many of Rawle’s lectures. It is likely that cadet Lee became quite familiar with Rawle’s view that the Union was not a compact into which the States had entered irrevocably. Rawle wrote:

“It depends on [the State] itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle upon which all our political systems are founded, which is, that the people have in all cases the right to determine how they will be governed.”

The newly elected president, Abraham Lincoln, had offered Lee, still only a colonel in rank, command of his army, comprised at the time of some 100,000 men. Had he accepted this, the appointment would have been the pinnacle of his career – everything that he had worked toward for more than 35 years as an officer. But he could not take up arms against his native State and all the complexities of consanguinity that she represented.

“I did only what my duty demanded,” Lee said after the war. “I could have taken no other course without dishonor.” [The final act of his command [of the Army of Northern Virginia], an honorable surrender, was his greatest demonstration of forbearance.”

(Excerpted from Remembering Robert E. Lee, Jack Trotter. Chronicles Magazine, June 2022, pp. 19-20)

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

Thomas Jefferson’s “Rupture”

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

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

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

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

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

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