Browsing "Sovereignty"

A Mistaken View of Sovereignty

The following was written by John W. Burgess, born in 1844 to Rhode Island parents living in middle Tennessee. Being confirmed nationalist Whigs, his parents raised him to believe the United States government was above the States themselves in political sovereignty. When war came, he committed treason against Tennessee by fleeing to the enemy invaders and waging war against that State.

A Mistaken View of Sovereignty

“Personally, I never had regarded the union under the Constitution of 1787 as a confederation of sovereign States. Even during my boyhood in the South, I had learned from my [Henry] Clay whig father and grandfather to look upon it as a nation holding exclusive sovereignty and exercising government through two sets of organs, each having its own constitutional sphere of action and limitation. I had been taught to consider that this was the advance made in our political system from the [Articles of] Confederation of 1781 to the [Constitution] of 1787.

But I can well remember that this was not the view taken by the vast majority of the people, in rank and file, at the time when I first became cognizant of these questions. The South, by an overwhelming majority, regarded the United States as a confederation of sovereign States; and a very large portion, perhaps a majority, of the people of the North held the like opinion.

The opposition by the New England Federalists to the War of 1812 with England, led by the Federalist [Daniel] Webster, who not only opposed entering upon it, but also opposed to supporting it, and who considered conscription as warranted constitutionally only in resistance to invasion, made the Federalists a State Rights party. One the whole, therefore, the change from Federalism to Republicanism was one which advanced the States Rights doctrine of the Union at the expense of the national doctrine.

[The] slave labor system of the South made it impossible to develop manufacture there and condemned that section to agriculture, chiefly cotton raising, and how the consciousness of this fact by Southern leaders moved them to seek some constitutional principle to defend themselves against the Whig tariff majority. The principle, as Calhoun elaborated it, was nullification, namely, the right of a State to suspend the operation of an act of Congress within its limits until the legislatures of, or conventions in, three-fourths of the States should approve it.

The idea in this doctrine was that the United States government could not determine the extent of its own powers, since that would make its own determinations, and not the Constitution, the measure of its powers – in other words, would make it autocratic.”

Despite writing this understanding of the nature of the American political structure, the author wrote of Lincoln’s July 4, 1861, address to a special session of Congress. By this time Lincoln had raised an army and declared war which only Congress can do, he also waged war against States which Article III, Section 3 of the US Constitution defines as treason. He additionally had suspended habeas corpus and arrested political adversaries which overawed any political opposition. Lincoln then absurdly claimed that “The Union is older than any of the States, and in fact, created them as States . . . [and that not] one of them ever having been a State out of the Union.”

After Lincoln and his military were victorious in war in 1865, the States were now mere “provinces of a completely centralized government.”

(Reminiscences of an American Scholar, John W. Burgess, Columbia University Press, 1934; pp. 294-297; 306)

 

Clarifying 19th Century American History

Americans were certainly “Confederates” before the 1789 constitution was ratified as their governing document were the Articles of Confederation. When ratifying the new 1789 constitution, 11 States decided to “secede” from the Articles and voluntarily “accede” to the new federation; North Carolina and Rhode Island held out for the Bill of Rights before they acceded. In the latter document, Article III, Section 3 fixed treason as only waging war against “Them,” the States, or adhering to their enemies, giving them aid and comfort.” This does raise the question of who waged war against the States forming a more perfect union to the South Below, the author clarifies misconceptions regarding Lincoln’s war.

Clarifying 19th Century American History

“Certainly, there are those of goodwill, and let us call it “invincible ignorance, who have been educated to think the primary issue in 1861 was slavery, and Abraham Lincoln was simply reacting to those “rebels” who wished to destroy “the sacred bonds” of Union, while advancing the great humanitarian cause of “freedom.” So much for the caliber and character of our contemporary educational system, not to mention Hollywood’s ideological tendentious (and mostly successful) attempts to influence us. Yet, that mythology surrounding the Southern Iliad of 1861-1865 will not stand serious cross-examination. Consider these popular myths and shibboleths:

“The War was about slavery!” Not really accurate: the war aims cited repeatedly by Lincoln and northern publicists consistently during the years 1861-1863, even afterwards, were that the war was to “preserve the Union.” Indeed, if the abolition of slavery had been declared a war aim in 1861, most likely a great majority of Union political leaders, not to mention Union soldiers, would have recoiled, and the northern war effort would most likely have collapsed.  It was difficult enough to gain wide support in the north, as it was. Remember, Lincoln was elected with less than 40 percent of the vote in 1860, and barely gained pluralities in most northern States.

“Lincoln freed the slaves.” No so; Lincoln freed not one slave. His proclamation, issued first on September 22, 1862, and formally on January 1, 1863, supposedly “freeing the slaves,” only applied to those areas not under Union military control or occupation, that is, territory of the independent Southern States. Lincoln’s proclamation “freed” slaves where his action had no effect.

And most recently this charge: “Robert E. Lee and other Confederate military leaders who were in the US Army committed treason by violating their oaths to defend the Union, and Confederate leaders were in rebellion against the legitimately elected government of the United States.” Somehow, critics seem to forget to mention that Lee and the other Confederate leaders resigned their commissions in the US Army, and from Congress prior to enlisting in the defense of their home States and in the ranks of the Confederate States army, or assuming positions in the new Confederate government. They did not violate their oaths; their States had formally left the union, and, thus, the claims of the federal government in Washington had ceased to have authority over them.”

(The Land We Love: The South and Its Heritage. Boyd D. Cathey. Scuppernong Press, 2018, pp. 60-61)

Lincoln & Seward’s Military Coup

In 1863 Republican Senator John Sherman recalled that it was William H. Seward rather than Lincoln who ordered the seizure of Maryland’s legislators in 1861, that “the high-handed proceeding was the work of Mr. Seward, of his own mere motion, without the knowledge of Lincoln.” Seward later told a British official that the arrests had been made to influence coming Maryland elections as well. Frederick (below) was Seward’s son.

Lincoln & Seward’s Military Coup

“The Lincoln administration believed, according to Frederick Seward, that “a disunion majority” in the Maryland State house would pass an ordinance to withdraw from the Union in September 1861. Lincoln had resolved to keep that from happening. Seward recalled: “[The military was] instructed to carefully watch the movements of members of the [Maryland] Legislature . . . Loyal Union members would not be interfered with . . . but “disunion” members would be turned back toward their homes and would not reach Frederick City at all. The views of each member were well-known . . . so there would be little difficulty, as Mr. Lincoln remarked, in “separating the sheep from the goats.”

[Seward continued]: “When the time arrived . . . it was found that not only was no secession ordinance likely to be adopted, but that there seemed to be no Secessionists to present one. The two generals had carried out their instructions faithfully, and with tact and discretion . . . No ordinance was adopted, Baltimore remained quiet, and Maryland stayed in the Union.”

Many arrests of northerners at that time involved freedom of speech and freedom of the press with Seward’s State Department records citing “treasonable language, “Southern sympathizer,” secessionist” and “disloyalty” as standard reasons for arrest and confinement. Additionally, even more serious-sounding arrest reasons were vague and sometimes denoted offensive words rather than deeds: “aiding and abetting the enemy,” threatening Unionists,” or “inducing desertion,” for example. A man in Cincinnati was arrested for selling envelopes and stationery with Confederate mottoes printed on them.

When an old associate of Seward came to Washington to plead for the release of a political prisoner from Kentucky held in Fort Lafayette, the secretary of state readily admitted that no charges were on file against the prisoner. When asked whether he intended to keep citizens imprisoned against whom no charge had been made, Seward apparently answered: “I don’t care a d—n whether they are guilty or innocent. I saved Maryland by similar arrests, and so I mean to hold Kentucky.”

(The Fate of Liberty: Abraham Lincoln and Civil Liberties. Mark E. Neely, Jr. Oxford University Press. 1991, pp. 15-16; 27-30)

Martial Law is the Absence of Law

Martial Law is the Absence of Law

A review of the martial law imposed upon the island of Key West 1861-1865 was recently presented by a local college history teacher, and as a part of the North’s comprehensive military strategy during the Civil War. The audience was a local Civil War Roundtable (CWRT) group.

The lecturer noted the military takeover of the civilian government on the island in mid-January 1861 as the local commander, Capt. James Brannan surreptitiously barricaded his 44 men in the nearly completed Fort Zachary Taylor and turned its guns on the town. Overnight, the US military’s local friends and neighbors became an enemy to be treated with suspicion and contempt. Now fearing bombardment of their homes from the nearby fort, the residents became prisoners in their homes.

The reason cited for Brannan’s warlike action was overhearing “secession” talk among the residents as well as Florida’s recent decision to formally withdraw from the United States federation and become an independent State. Florida was to remain independent until it formally voted to join the Confederate States of America on April 22, 1861.

The arrival in March 1861 of more Northern troops increased armed patrols roaming the town and surveilling citizens. Arbitrary arrests were common, and Fort Taylor became an American bastille to hold prisoners of conscience. Locals, especially merchants with inventories to sell, sought favor with the military as willing informants, reporting on anyone complaining of military rule. Elected officials who disagreed with the military faced arrest and confinement, and new elections of approved candidates were held under armed supervision. Those considered “dangerous secessionists” were deported to the mainland.

What Capt. Brannan accomplished with his unilateral action, and unfortunately not pointed out by the lecturer, was to wage war against a State which is the very definition of treason in the US Constitution – Article III, Section 3. Though Brannan was applauded by his fellow officers and eventually promoted for his act, this does not absolve him of treason.

It was highly likely that Brannan was emulating Major Robert Anderson at Charleston as news of the Fort Sumter seizure could have reached him at Key West in early January. As Anderson suffered no adverse consequences for his fort seizure, Brannan perhaps saw a green light to do the same but should have been more circumspect as he certainly was aware that John Brown was hung in 1858 for waging war against Virginia – the crime being treason. Noteworthy is that Brown was tried and convicted in Virginia, where he committed his crime.

Though this speaker outlined how the island was placed under military rule, no adequate or honest discussion was provided regarding how or why military rule had suddenly materialized, how it was justified under American law, or who specifically ordered it. Martial law is generally considered to be the absence of law with arrests and detentions made at the discretion of the military commander, or those commanded by him. Missing was any explanation of how easily Northern commanders could ignore habeas corpus which was so deeply rooted in Anglo-American jurisprudence. But importantly, as Lincoln ignored the Constitution and approved the repressive actions of those like Brannan, it only encouraged more violations of the law.

The seizure of Fort Taylor came at the whim of a local military commander who was sworn to uphold the United States Constitution – and who should have clearly understood the definition of treason. Though simplistically following orders to protect the fort he was charged with commanding, the withdrawal of the State of Florida and its relationship with the United States government at Washington took precedence. After being officially advised of Florida’s decision to formally declare independence, and lacking any reason to remain on the island, which was no longer part of the United States, Capt. Brannan should have sought Florida officials to provide him with receipts for all equipment left behind before departing with his command. Though he likely would have been court-martialed for doing this, he would have been true to his oath to support the United States Constitution.

The above indicates that there is more than one viewpoint regarding this particular topic, and a more well-versed history teacher should have been able to present all credible perspectives beyond their own. In this particular case, the audience deserved a far better explanation of how military rule quickly overwhelmed a peaceful American town. The listeners were unfortunately left with a partial and limited view of this important and most revealing topic.

(For more information on this topic, see: “Key West’s Civil War: Rather Unsafe for a Southern Man to Live Here.” John Bernhard Thuersam – Shotwell Publishing and available on Amazon)

The War Against the States

“[The] fact remains that that the Civil War was a political and constitutional watershed in United States history. Although the Civil War draft was primarily an inducement to volunteering [with ample financial incentives], the arbitrary arrests [of civilians] and first use of [a clearly unconstitutional] national conscription established important precedents. Economically, power shifted toward the industrialized North.  Moreover, at war’s end the very concept of State sovereignty established by the Founders had little meaning.

As Professor William B. Hesseltine said many years later, it was a “war against the States, both North and South. Within half a century after Appomattox, the federal government began to regulate certain businesses and introduced a graduated income tax. These innovations would have been inconceivable prior to 1860.” Larry Gara, Wilmington College.

(Review of “The North Fights the Civil War: The Home Front,” J. Matthew Gallman (Dee Publishing, 1994. Published in Civil War History – A Journal of the Middle Period, Vol. 42, No. 3. September 1996).

Aggressive Abroad, Despotic at Home

On December 15, 1866, Gen. Robert E. Lee wrote Britain’s Lord Acton that he believed the victorious North’s consolidation of all the American States into “one vast republic . . . will be the certain precursor to ruin which has overwhelmed all those that have preceded it.” Lee. Like many others, saw the authority reserved to the States and the people, now destroyed by the war, had been “the only safeguard to the continuance of free government.”

Below, author Gore Vidal wrote in 2002 of the national security state’s creation by Harry Truman, though it was certainly put into motion first by Lincoln, reinforced by Woodrow Wilson and perfected by Roosevelt the Second. Unfortunately, Vidal’s research does not reveal the military-industrial, security state apparatus created by Lincoln.

Aggressive Abroad and Despotic at Home

“Fifty years ago, Harry Truman replaced the old republic with a national security state whose sole purpose is to wage perpetual wars, hot, cold and tepid. Exact date of replacement? February 27, 1947. Place: White House Cabinet Room. Cast: Truman, Undersecretary of State Dean Acheson, and a handful of congressional leaders.

Republican Senator Arthur Vandenburg told Truman he could have his militarized economy only if he first “scared the hell out of the American people” that the Russians were coming. Truman obliged.

The perpetual war began. Representative government of, by and for the people is now a faded memory. Only corporate America enjoys representation by the Congresses and presidents that it pays for in an arrangement where no one is entirely accountable because those who have bought the government also own the media.

Now with the revolt of the Praetorian Guard at the Pentagon, we are entering a new and dangerous phase. Although we regularly stigmatize other societies as rogue states, we ourselves have become the largest rogue state of all. We honor no treaties. We spurn international courts. We strike unilaterally whenever we choose. We give orders to the United Nations but do not pay our dues. We complain of terrorism, yet our empire is now the greatest terrorist of all. We bomb, invade, subvert other states.

We have allowed our institutions to be taken over in the name of a globalized American empire that is totally alien in concept to anything our Founders had in mind.”

(Perpetual War for Perpetual Peace: How We Got to be So Hated. Gore Vidal. Thunder’s Mouth Press, 2002, pp. 158-159)

Secession or a War of Rebellion?

Secession or a War of Rebellion?

The Possibility Foreseen by the Continental Congress. W.A. Lederer of Philadelphia.

“The voluntary withdrawal of a State, or group of States, from a Union, or any other political body is generally known as secession, notwithstanding the reasons and procedures leading up to this decision. In 1905, Norway seceded from the Scandinavian Union of some ninety years standing, which act was considered a peaceful separation from Sweden.

In 1776, the thirteen colonies separated from the motherland, which act, being settled with arms, but successfully, is known as the Revolution of ’76, or the first War of Independence. The year 1861 witnessed the outbreak of the second War of Independence, as we may justly name it, which received the offensive name given by the victor, the War of the Rebellion. (Commonly spoken, a revolution is a successful rebellion and thus had the thirteen colonies been unsuccessful, that war would have been known as the War of Rebellion, notwithstanding the causes).

To the truthful and sincere historian, the War of 1861-1865 is known as the War Between the States, its purpose being the prevention of the peaceful separation and secession of the Southern States from the 1789 Union. To the informed and educated American, therefore, secession means the justified act of a peaceful separation of economically two different sections of the Union.”

Mr. Lederer continued his review of the newly independent States and the issue of slavery and the North’s important role in perpetuating the institution. He wrote:

“Thomas Jefferson’s original draft of the Declaration of Independence was “considerate and courteous, yet Voltaire-like as he caustically refers to the slave trade of the pious Yankee, and rather than cause a disruption of the drive for independence, he omitted this” from his final draft. In explaining this omission regarding African slavery: “It was struck out in compliance with South Carolina and Georgia, who had never attempted to restrain slave importation . . . Our Northern brethren also, felt a little tender toward those censures; for tho’ their people have very few slaves themselves, yet they have been pretty considerable carriers of them to others.”

(W.A. Lederer, Confederate Veteran, September, 1930, pp. 337-338)

South Carolina’s Devotion to the Union

Famed orator and debater Robert Y. Hayne of South Carolina served as South Carolina Senator 1823-1832, governor of that State 1832-1834, and mayor of Charleston 1836-1837.  He famously debated Daniel Webster of Massachusetts in Congress in early 1830 over concerns that the federation’s government was attracting too much revenue, accumulating too much debt and trending toward consolidation. Hayne further reminded Webster of New England’s infamous trading with the enemy and threats of secession during the War of 1812.

South Carolina’s Devotion to the Union

“If there be one State in this Union (and I say it not in a boastful spirit) that may challenge comparison with any other for a uniform, zealous, ardent and uncalculating devotion to the Union, that State is South Carolina.

Sir, from the very commencement of the Revolution, up to this hour, there is no sacrifice, however great, she has not cheerfully made; no service she has ever hesitated to perform.”

“What sir, was the conduct of the South during the Revolution? Sir, I honor New England for her conduct in the glorious struggle . . . [but] I think equal honor is due the South. Favorites of the mother country, possessed of neither ships nor seamen to create commercial rivalship, they might have found in their situation a guarantee that their trade would be forever fostered and protected by Great Britain. But trampling on all considerations, either of interest or of safety, [the South] rushed into the conflict, and, fighting for principle, periled all in the sacred cause of freedom. Never was there exhibited, in the history of the world, higher examples of noble daring, dreadful suffering and heroic endurance, than by the whigs of Carolina, during that Revolution.”

And the War of 1812, called in derision by New England, said Hayne, “the southern war,” what was the conduct of South Carolina? The war was for the protection of northern shipping and New England seamen.

‘What interest had the South in that contest? If they sat down coldly to calculate the value of their own interests involved in it, they would have found they had everything to lose and nothing to gain. But sir, with that generous devotion to country so characteristic of the South, they only asked if the rights of any portion of their fellow-citizens had been invaded; and when told that northern ships and New England seamen had been arrested on the common highway of nations, they felt that the honor of the country was assailed . . . they resolved to seek, in open war, for a redress of those injuries which it did not become freemen to endure.’

The conduct of Massachusetts, declared Hayne, was in that war so unpatriotic and disgraceful, her acts in opposing the war so shameless, that “her own legislature, but a few years ago, actually blotted them out from the records as a stain upon the honor of the country.”

(The True Daniel Webster. Sydney George Fisher. J.B. Lippincott Company. 1911, pp. 254-255)

What the American South Fought to Defend

What the American South Fought to Defend

(Excerpted from Barry Goldwater’s “Conscience of a Conservative)

The Governor of New York, [Franklin Roosevelt], in 1930 pointed out that the Constitution does not empower the Congress to deal with “a great number . . . of vital problems of government, such as the conduct of public utilities, of banks, of insurance, of agriculture, of education, of social welfare, and a dozen other important features.” And he added that “Washington must not be encouraged to interfere” in these areas.

Franklin Roosevelt’s rapid conversion from Constitutionalism to the doctrine of unlimited [national] government, is an oft-told story. But I am here concerned not so much by the abandonment of States’ Rights by the national Democratic party – an event that occurred some years ago when that party was captured by the Socialist ideologues in and about the labor movement – as by the unmistakable tendency of the Republican party to adopt the same course. The result is that today neither of our two parties maintains a meaningful commitment to the principle of States’ Rights. Thus, the cornerstone of our republic, our chief bulwark against the encroachment of individual freedom by big government, is fast disappearing under the piling sands of absolutism.

The Republican party, to be sure, gives lip-service to States’ Rights. We often talk about “returning to the States their rightful powers’; the administration has even gone so far as to sponsor a federal-state conference on the problem. But deeds are what count, and I regret to say that in actual practice, the Republican party, like the Democratic party, summons the coercive power of the federal government whenever national leaders conclude that the States are not performing satisfactorily.

There is a reason for the Constitution’s reservation of States’ Rights. Not only does it prevent the accumulation of power in a central government that is remote from the people and relatively immune from popular restraints; it also recognizes the principle that essentially local problems are best dealt with by the people most directly concerned. The people of my own State – and I am confident that I speak for the majority of them – have long since seen through the spurious suggestion that federal aid comes “free.”

The Constitution . . . draws a sharp and clear line between federal jurisdiction and State jurisdiction. The federal government’s failure to recognize that line has been a crushing blow to the principle of limited government.”

(The Conscience of a Conservative. Barry Goldwater. Victor Publishing Company, 1960, excerpts, pp. 24-29)

Chief Justice Taney and Dred Scott

What follows is an abridgment of an article written by a descendant of Chief Justice Taney to clarify the legal question presented and facts considered. Taney was 12 years old when Washington died and lived long enough to see the Constitution overthrown by military force. It is said that his arrest was ordered for defying Lincoln’s suspension of habeas corpus.

Chief Justice Taney and Dred Scott

Chief Justice Roger B. Taney (pronounced “tawney”), 1777-1864, is mostly known for his decision in the Dred Scott v. Sanford case in 1857. Largely forgotten is his 30 years on the bench of the Supreme Court, and his steadfast understanding that the Constitution is a compact among sovereign States. In his view, most matters of importance were the domain of States, not the federal government, and the Court was to interpret the Constitution according to the original constitutional meaning when it was first adopted.

The primary question the Court was to decide in the Dred Scott case was whether black people in the United States were “citizens” of the United States. It must be recalled that in the antebellum United States people were first citizens of the individual States, and by virtue of that, the United States.

Taney’s Court was to determine whether people of African descent were actual members of the American political community under the original intent and meaning of the Constitution. His study and understanding reflected that the United States in 1789 were primarily white, Anglo-Saxon people and black people were not part of what was an original political creation of Europeans. The racial viewpoint of the latter toward African people was primary in his consideration.

He and his Court saw that in all States, North and South, laws restricted relations between the white and black races because it was widely believed that “a perpetual and impassable barrier was intended to be erected between the white and black race.” Clearly, this is in general an accurate assessment of 17th and 18th century colonial law.

The Court also explored whether the Declaration of Independence proposition that “all men are created equal” altered the legal and social status of black people in America. Taney argued that if understood in its proper historical context where blacks and whites occupied different legal and social spheres, “it is too clear that black people were not intended to be included and formed no part of the people who framed and adopted this Declaration” in 1789.

It was clear then as it is now, that the Declaration of Independence stood only for the proposition that the American colonists, as Englishmen, had the same rights to self-determination and self-government as their British kinsmen. The Founders of course provided for future amendments to their work, but Taney and his Court were considering this legal question in 1857.

Taney’s Court also investigated whether the Constitution itself had changed the status of black people so as to make them part of the American political and legal community. Taney noted that as the Preamble declared that the United States was formed “by the people” – which was those who were members of the different political communities in the several States forming the United States. Taney concluded that as most States, North and South, had long distinguished between blacks and whites in terms of social and legal rights, and the Constitution itself implicitly distinguishing between the races in its Migration and Importation clause (permitting the abolition of the slave trade after 1808) and the Fugitive Slaves clause, black people were simply not intended as part of “the people” described in the Constitution.

As Taney reviewed federal statutes to further divine the Founders’ minds in 1789 and what they considered “the people of the United States,” he found two federal laws passed within a few years of ratification. One was the first naturalization law of 1790, which provided that only “free, white persons” could become citizens and therefore this was the political community. The other was the first militia law of 1792, which required the enrollment of every “free, able-bodied white male citizen.”

Though one could contest Chief Justice Taney’s interpretations at that time, eminent historian Carl Brent Swisher wrote in his well-respected biography of Taney that his decision was based upon an “accurate portrayal of relations between the two races in communities where both lived in considerable numbers” at the time it was written.

Thus, investigating this important question in 1857, Chief Justice Taney concluded that people of African descent were not citizens of the United States, and therefore the Dred Scott case did not fall under federal jurisdiction. To rule otherwise, Taney warned, “would require that the Court give to the words of the Constitution more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”

Such a “liberal construction” would exceed the Supreme Court’s authority.

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