Circa1865

The Founders were wary of a standing army and gave only to Congress the power to raise troops and declare war. Should a sitting president venture to call for troops at his whim, as did Lincoln, the republic of those Founders was at an end.

Lincoln and the governors of Pennsylvania, Massachusetts and New York who supplied him with troops for the purpose of waging war against other States and adhering to their enemies, were all were guilty of treason according to Article III, Section 3 of the United States Constitution.

There was a peaceful alternative which was not pursued by Lincoln and his party, and Southern Unionists pleas for peaceful diplomacy and compromise were ignored in favor of intentional duplicity at Charleston.

Exercising All the War Powers of Congress

“The day after Fort Sumter surrendered President Lincoln called on the several States for seventy-five thousand militia for ninety days service. The troops were to suppress “combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law, a curiously legalistic phraseology probably adopted in an attempt to bring the proclamation under the Acts of 1795 and 1807 governing the calling out of the posse comitatus.

Amid immense enthusiasm, the established militia regiments in the eastern cities moved at once. Pennsylvania troops, a few companies, reached Washington the next day; Massachusetts troops came within four days, in spite of the violent resistance to the transfer of the regiment across Baltimore between the railroad stations; New York’s first regiment was but a day behind Massachusetts.

The Governors of Maryland, Virginia, North Carolina, Kentucky, Tennessee, Arkansas and Missouri sharply declined to honor the President’s requisition for troops to be used against the seven States of the Confederacy. The Governor of Delaware reported that he had no authority for raising troops.

Neither, for that matter, had President Lincoln, under strict construction of the laws. In his first proclamation he called Congress into special session, but not to meet until the Fourth of July, more than two and a half months later.

In the meanwhile, free from interference, he drove ahead to organize his war, making laws or breaking them as he had need to, creating armies, enlarging the Navy, declaring blockades, exercising all the war powers of Congress.

Before the guns spoke at Sumter and the President answered with his call for troops, there was everywhere, in the North, in the Border States unhappily torn between loyalties, and even in those States which had seceded, a strong party for peace. The fire of Sumter swept away all that in the North; the call of Lincoln for troops, in the South.

The New Orleans True Delta, which had opposed secession and sought peace, “spurned the compact with them who would enforce its free conditions with blood” — an attitude that was general among those who were not original secessionists.”

(The Story of the Confederacy, Robert Selph Henry, Bobbs-Merrill Company, 1931, excerpts pp. 34-35)

Alexander Hamilton was no friend of the Articles of Confederation and the decentralized republic it represented, but he did know the limits of newly-created federal power within the new constitution. His view was that States retained any authority not specifically delegated, and that State troops, as in 1861-1865, would constitutionally resist any invasion to preserve their independence and sovereignty.

James Madison wrote of this as well, stating that more than one State might band together, as in the later Confederate States of America, to resist any and all encroachments on State sovereignty by the federal agent created by the States.

Alexis de Toqueville, the French traveler in the America of 1831-32, saw firsthand the powers of “this strange new democratic monster” that would within thirty years gain control of the federal government and consolidate all, by force, into one common mass.

Saddled with Another Absolutist Regime

“In Toqueville’s opinion, the many levels of responsibility acted as buffers against the tyranny of the majority that ordinarily characterized democracy. Then United States possessed a centralized government but not a centralized administration.

To what extent American self-government was an outgrowth of the federal constitution, or merely a by-product of their habits and experiences, remains to be seen. This much, however, is clear: no subject so agitated the founding fathers as the possible loss of local responsibility under a federal government. The new constitution had to be designed in a way that maximized State autonomy.

As Hamilton put it in Federalist 62, “The equal vote allowed to each State [i.e. in the Senate] is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residual sovereignty.”

Although Hamilton favored a centralized economic authority, he argued that the federal government could not legitimately use the taxing power as an excuse to interfere in the internal government of the States. In Federalist 28, he argued that State militias would be called out to resist invasions of sovereignty.

[James] Madison concurred, and in Federalist 46 suggested that the States would band together to prevent such encroachments. Even the arch-federalist John Marshall declared (in McCulloch v. Maryland) that “no political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.”

Interference in the life of local communities had been one of the complaints against the royal government. The anti-Federalists were afraid that, by adopting the Federal Constitution, they were saddling themselves with another absolutist regime. Mass democracy, as Toqueville realized, was dangerous.”

(The Politics of Human Nature, Thomas Fleming, Transaction Publishers, 1988, excerpts pg. 200)

The northeastern United States of the late 1820s were sufficiently prosperous to have a large group of “substantial citizens” . . . manufacturers and journalists interested in the cause of domestic industry, and their purpose was to influence the passage of a new tariff act.” For the most part these men were industrialists and focused on increased profits, not national stability.

The South was in economic distress at the time and the new, higher tariff “seemed to end once and for all any prospect of relief, and many [Southerners] were ready for outright rebellion, even as New England had been in 1814.”

For South Carolina to nullify a federal law it viewed as obnoxious and injurious to its citizens, was a full expression of the Tenth Amendment — inserted into the Constitution for an obvious purpose. The next logical step of an injured State would be peacefully withdrawing from a political union which no longer fulfilled the purposes for which it was formed. And if withdrawal was met with violence, revolution was next.

The American Right of Revolution

“Controversial as Nullification was in the absence of original records before 1828-1833, Americans still continued to believe in federalism and States’ rights. In the words of Alexander Johnston, “Almost every State in the Union in turn declared its own sovereignty and denounced as almost treasonable similar declarations by other States.”

Herman V. Ames in fact compiled a “collection of documents on the relation of the States to the Federal Government” in 1911. They were “selected especially,” he observed, “with a view to illustrate the development of the “compact theory” of the Constitution and the doctrine of “State Rights,’ State opposition to the Federal Judiciary, and the different phases of the slavery controversy, culminating in the secession movement.”

That we believe otherwise today, in Nullification’s unconstitutionality and [John C.] Calhoun’s and the South’s apostasy from the beliefs of the founders and framers, is explained by another and longer era of historical amnesia by which original intentions as described herein in length were not so much forgotten as between 1789 and 1819, but purposely misinterpreted both to nullify the Nullifiers of South Carolina and to establish a mythical history for a new nation in the making that was the central development of the years after the War of 1812 and until the Civil War.

While this more liberal-democratic-egalitarian-nationalist America was yet inchoate as the confused politics of the 1820s and 1830s inform us, it was there nonetheless in Jacksonian Democracy and nationalism and radical abolitionism which were, it is forgotten, minority movements. The union of the States persisted with the 18th century Whig-republican ideology still extant as the core set of beliefs within the misnamed Democratic party that was really republican with a small “r.”

The liberal-in-a-neo-Hamiltonian sense-Whigs of the 19th century co-existed long enough to make party politics interesting and popular and the preserve the old union of the States. If not republicans, most Americans before the Civil War remained at least federalists. Nullification may have come and gone, but the “right of revolution” continued to be accepted as an original intention and the ultimate means to preserve liberty.”

(Nullification, A Constitutional History, 1776-1833, Volume II: James Madison and the Constitutionality of Nullification, 1787-1828, W. Kirk Wood, University Press of America, 2009, excerpts pg. 105)

The American Founders foresaw the problem of abuse of power and the rise of a president who would cut the shackles of the Constitution, though they more feared sectionalism and an evil combination of the branches of government.

The abuse of power arose with a president who fomented war upon a State, which is treason under the Constitution, raised an army without the consent of Congress, and threatened to arrest and imprison all who defied him. With the formerly federal government afterward under absolute executive and congressional control, the schools educating young citizens on their fealty to national power.

James Louis Petrigu (1789-1863) was a South Carolina Unionist and served as that State’s attorney-general. His stated faith in education as the bulwark of a republic was unfortunately upset by government control of the schools.

“Who Shall Restrain the Will of the People?”

“As Petigru understood it, the United States Constitution confirmed what the Revolution had aimed to achieve. Reversing the Confederation’s dispersal of power was but a minor part of its accomplishment, for it had by its division of legitimate governmental power between the individual States and the federal union ensured the Revolution’s goals of restricting centralized public authority in the interests of individual liberty.

But individual freedom, as Petigru said in his 1844 Fourth of July oration, required positive government as well as restraints on legitimate power. This too the Constitution had accomplished with its system of checks and balances. Without both the powers allotted and the restraints imposed, “there would be no barrier between a dominant majority and the object they mean to effect.”

Thus, by creating a constitutional union that divided sovereignty between State and nation and checked the evil of concentrated power in any one branch of government, the American people had fulfilled the promise of their revolution.

But the problem of abuse of power was not obviated by the broadly democratic underpinning of the American experiment. Nowhere did Petigru more clearly address that dilemma than in the question he asked that Independence Day audience: “For who shall control where all are equal, or how shall the people restrain the will of the people?”

The best means to control the popular passions implied in his question was education. If a republic was to survive, he thought, its government must provide the schools necessary to cultivate in all its citizens the intellectual independence that was “the bright side of Democracy.”

Without access to knowledge, citizens would lack the ability to challenge their government, and individuals the means to protect their freedom . . . [and] withstand the force of majority opinion. And given Petigru’s opinion that “the Majority are wicked is a truth that passed long ago into a proverb,” republican government could not long survive unless it sponsored that learning, for “what hope is there for the human race when there is no minority?”

(James Louis Petigru: Southern Conservative, Southern Dissenter, William & Jane Pease, University of Georgia Press, 1995, excerpts pp. 149-150)

John C. Calhoun witnessed the rise of Northern radicalism and his keen political insight saw a problematic future for the American South. He did not live to see the secession crisis fully develop, but his countrymen later anticipated “that Lincoln’s election was only the first step” toward the eventual destruction of their political liberty and the Union of their fathers.

Calhoun accurately predicted that the North would monopolize the new federal territories and acquire a three-fourths majority in Congress to force a restructuring of the Union. Once the South’s freedmen were admitted to the franchise by the North’s radical Congress, Republican political hegemony was virtually uninterrupted until 1913.

The Emergence of the Radical

“In the 1830’s . . . the North had become a prolific seedbed of radical thought. The rural South, on the other hand, showed little tolerance for radicals. The hostility to the proponents of revolutionary ideas seems at first inconsistent with the individualism which Southerners generally displayed. The Southern brand of individualism, however, was of manners and character rather than of the mind.

The Southerner vigorously resisted the pressure of outside government, he was cavalier in the observance of the laws; the planter on his semi-feudal estate was a law unto himself. The yeomen, too, living largely on land that they owned and regarding themselves as “the sovereign people,” were among the freest and most independent of Americans.

[In the 1840s and 1850s], editors, preachers, and politicians launched a vigorous propaganda campaign against Southern youth attending Northern schools and colleges. In the minds of conservative Southerners public education now became associated with the “isms” of the North – abolitionism, feminism, pacifism, Fourierism, Grahamism. Thus Southerners tended to regard the great majority of Northern people as sympathetic to the wilds visions and schemes of reform advocated by the northern extremists.

For many years Yankee professors and teachers had staffed Southern colleges and schools to a large extent, but in the last two decades of the antebellum period a pronounced hostility arose against the employment of educators from the North.

When [University of North Carolina] President David L. Swain defended the appointment [of a Northern teacher, he cited] earlier examples [of] employing foreign professors, the highly influential [Fayetteville News & Observer] editor, E.J. Hale replied: “In [two Southern] institutions, filled with foreigners and Northern men, there have been most deplorable outbreaks & riots and rows. Both have been noted for the prevalence and propagation of infidel notions to religion.”

(The Mind of the Old South, Clement Eaton, LSU Press, 1964, pp. 110; 305-306)

The original North Carolina Republic flag of 1861 was altered in 1885 with only the red and blue colors rearranged, and the lower date announcing the date of secession changed to “May 20th, 1775,” the date of the Halifax Resolutions.

This mattered little as both dates, 1775 and 1861, “places the Old North State in the very front rank, both in point of time and in spirit, among those that demanded unconditional freedom and absolute independence from foreign power. This document stands out as one of the great landmarks in the annals of North Carolina history.”

Militarily invaded and conquered in 1865, North Carolinians were forced to forever renounce political independence, and thus written in a new State constitution imported from Ohio.

North Carolina’s State Flag

“The flag is an emblem of great antiquity and has commanded respect and reverence from practically all nations from earliest times. History traces it to divine origin, the early peoples of the earth attributing to it strange, mysterious, and supernatural powers.

Indeed, our first recorded references to the standard and the banner, of which our present flag is but a modified form, are from sacred rather than from secular sources. We are told that it was around the banner that the prophets of old rallied their armies and under which the hosts of Israel were led to war, believing, as they did, that it carried with it divine favor and protection.

Since that time all nations and all peoples have had their flags and emblems, though the ancient superstition regarding their divine merits and supernatural powers has disappeared from among civilized peoples. The flag now, the world over, possesses the same meaning and has a uniform significance to all nations wherever found.

It stands as a symbol of strength and unity, representing the national spirit and patriotism of the people over whom it floats. In both lord and subject, the ruler and the ruled, it commands respect, inspires patriotism, and instills loyalty both in peace and in war.

[In the United States], each of the different States in the Union has a “State flag” symbolic of its own individuality and domestic ideals. Every State in the American Union has a flag of some kind, each expressive of some particular trait, or commemorative of some historical event, of the people over which it floats.

The constitutional convention of 1861, which declared for [North Carolina’s] secession from the Union, adopted what it termed a State flag. On May 20, 1861, the Convention adopted the resolution of secession which declared the State out of the Union.

This State flag, adopted in 1861, is said to have been issued to the first ten regiments of State troops during the summer of that year and was borne by them throughout the war, being the only flag, except the National and Confederate colors, used by the North Carolina troops during the Civil War. The first date [on the red union and within a gilt scroll in semi-circular form], “May 20th, 1775” refers to the Mecklenburg Declaration of Independence . . . The second date appearing on the State flag is that of “May 20th 1861 . . .”

(The North Carolina State Flag, W.R. Edmonds, Edwards & Broughton Company, 1913, excerpts pp. 5-7)

War against the South commenced in April 1861 was not the only option open to Lincoln. He could have followed his predecessor’s view that he had no constitutional authority to wage war against a State – which is treason. The proper option would have been for a president to facilitate peace and call a convention of States to iron out differences, and find compromises all considered best. This is how the federation of States was created by the Founders.

Neither was war the only solution to African slavery in the United States – recall that Lincoln offered Southern States no interference with slavery if they would return to the Union. The South was seeking independence, and wanted to solve the riddle of slavery within State boundaries as the Northern States had done – in their own time, and at their own pace.

Results of Confederate Independence

“It is legitimate to inquire, in view of all the facts discussed, what would have been the effect on our condition, our institutions, and our future relations if the Confederate States had established their independence. I can, of course, only give my opinion, founded on certain physical features of the country, on certain racial characteristics of the people North and South, and on the sentiments of other nations, as well as on the fundamental principles for which we contended.

Emancipation. – There would have been certainly the gradual emancipation of the slaves on the following grounds:

The sentiment of the civilized world was opposed to slavery; and though our system was misunderstood and misjudged, yet no nation can hold out against a universal moral sentiment.

There was a feeling throughout the South from the beginning of the republic favorable to emancipation as soon as it could be done without danger to all concerned. If the abolition propaganda had not aroused opposition by its unjust misrepresentations and denunciations of slaveholders, the Border States would have brought it about several years before the war. A

s it was, throughout the South there was a growing effort to correct to confessed evils of the system. The example of the Border States would have necessitated some form of emancipation, some modification of the system in the States farther south that would have preserved the white man’s control, while giving the Negro freedom. The conduct of the slaves during the war while left in charge of the master’s family was without parallel in history; and this not only deserved freedom, but it called forth the sentiment of the Southern people favoring it.

Gen. R.E. Lee freed his slaves in 1863.

I believe that emancipation would have come in such a way as to avoid the dangers of race conflict, of social equality, and of giving the Negro a political franchise to which he was not fitted. The South would have given him his liberty and every right necessary to the development of his manhood, and it would have secured him the hearty interest and help of the white man. No doubt political rights would have been granted gradually as the Negroes became prepared for their exercise.

A Restored Union – There would have been ultimately a restoration of the Union on terms that would leave no ground of misunderstanding as to the several spheres of Federal and State sovereignty. The rights of the States would have been thoroughly and clearly guarded. The rights of the central government would have been definitely marked and limited. This would have been the old Union as originally intended by the fathers. The Constitution could not have been set aside by the interpretation of a majority of a Supreme Court appointed by a partisan executive.

The Taxing Power Guarded. – The Constitution of the new Union would have so guarded the taxing powers of the central government that it would not have been possible for it by tariffs to build up one section of the country at the expense of the others, nor to build up great trusts to levy tribute on the whole country for the benefit of the few.

The Confederate Constitution was simply a revision of the old, or rather the clear statement of the real meaning of the old.”

(Results of Confederate Independence: The Failure of the Confederacy – Was it a Blessing? James H. M’Neilly, D.D., Confederate Veteran, April 1916, excerpts pp. 164-165)

It is written that what the French took from American Revolution was their theory of revolution, not their theory of government. When French officers were leaving for home, they were cautioned by Samuel Cooper of Boston to “not let your hopes be inflamed by our triumph on this virgin soil. You will carry our sentiments with you, but if you try to plant them in a country that has been corrupt for centuries, you will encounter obstacles more formidable than ours. Our liberty has been won with blood; you will have to shed it in torrents before liberty can take root in the old world.”

Opinions on State Rights

“The true natural check on absolute democracy is the federal system, which limits the central government by the powers reserved [to the States], and the State governments by the powers they have ceded. It is the one immortal tribute of America to political science, for State rights are at the same time the consummation and the guard of democracy.

So much so an American officer wrote, a few months before [First Manassas]:

“The people in the South are evidently unanimous in the opinion that slavery in endangered by the current of events, and it is useless to attempt to alter that opinion. As our government is founded on the will of the people, when that will is fixed our government is powerless.”

Those are the words of Sherman, the man who, by his march through Georgia, cut the Confederacy in two. Lincoln himself wrote, at the same time:

“I declare that the maintenance inviolate of the rights of States, and the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of powers on which the perfection and endurance of our political fabric depend.”

Such was the force with which State rights held the minds of abolitionists on the eve of the war that bore them down.”

(Lectures on the French Revolution, John Emerich Edward Dalberg-Acton, Liberty Fund, 2000, excerpts pp. 31-32)

On August 23, 1775, George III proclaimed the American colonists of New England to be traitors and in rebellion. To suppress the American revolt, George III prepared for total war and sent an army of Scots Highlanders and Royal Guards; his effort to buy troops from Catherine of Russia had fallen through, though he acquired 7,000 German mercenaries from Brunswick and Hesse-Cassel.

One cannot fail to see the similarities with 1861 as a new American nation declared its independence and raised an army for defense. An American president then assembled an army which included paid German troops to suppress a “rebellion,” and the rebel leader is denounced as an “arch-rebel.”

George III offered amnesty and pardon if the colonists again recognized him as their Sovereign; Lincoln offered the South amnesty if it recognized him as their Sovereign. The “hideous dens of malnutrition and disease” described below were replicated in many Northern prisons and the cruel fate of the “Immortal 600” Southern officers held at Morris Island in 1864. One may also compare the tactics and methods of rebel-general Washington with rebel-general Stonewall Jackson in the Valley.

Arch-Rebel George Washington

“Washington’s plight [at New York in July 1776] was made more desperate by a piece of awesome news. America and the mother country had come to the parting of the ways. An express from Philadelphia brought the report that independence had been declared by [the Continental] Congress on 2 July.

Was he the first general of an emerging nation, or, as British propaganda had it, “the arch-rebel Washington,” outlaw leader of a guerilla band. [Howe’s] troops crossed the Hudson, scaled the Palisades, and took Fort Lee in twenty minutes, with yet another cache of arms and soldiers, the former to bombard the rebels, the latter to languish miserably in prison ships, floating sewers anchored off New York Harbor, hideous dens of malnutrition and disease.

[In early January 1777 near Princeton, British troops] opened a cannonade on the outnumbered Americans, trapped them in an orchard between a ravine and their cannon, leveled them with fresh blasts of artillery, and waded in with bayonets. Trapped and frightened, the [Americans] began to fall back to the rear . . . [and at] that moment Washington appeared.

Glancing once at the bloodied terrain, [Washington] plunged through the melee to within thirty yards of the advancing British and disappeared in a burst of fire and a gigantic cloud of smoke. It blew off a minute later, revealing George, possessed as ever, sitting calmly on his big white horse.

“Advance!” and the army plunged after him into the British center, driving them through the fields into the red brick buildings of the Princeton campus, where they holed up in schoolrooms, firing from class and chapel windows until blasted out by barrages of artillery or chased out at the point of bayonets. Perpetrators of the earlier orchard massacre received a dreadful vengeance; convinced the foe had used their bayonets with excessive severity, Americans closed in on the survivors and slaughtered nearly sixty on the spot.

[Cornwallis’s aide] Charles Stedman, objective even in catastrophe, traced the coup to Washington’s use of surprise and timing to unbalance a much larger army and his disposal of small forces for the maximum effect.”

(Washington: A Biography, Noemie Emery, G.P. Putnam’s Sons, 1976, excerpts pp. 192-193; 202; 210-211)

“Nearly everyone believes the cheerful myth that nothing has changed since 1789.”

“As for the Electoral College, it is indeed an anachronism that serves no real purpose. It certainly doesn’t do what is was supposed to do: elect presidents who are, in Alexander Hamilton’s words, “pre-eminent for ability and virtue.” So wrote Hamilton, as “Publius,” in Federalist No. 68.

For what it’s worth, the Framers of the Constitution didn’t want the president elected by direct popular vote. Simple majority rule was alien and abhorrent to them, as the present two-party duopoly and the popular election of senators would have been; as Hamilton put it, direct election of presidents would produce “tumult and disorder.”

They prescribed that the people of each State should elect a body of presumably incorrupt and disinterested electors, men who possessed the requisite “information and discernment” to choose among candidates for the presidency. Those electors, in Hamilton’s words, should be “men most capable of analyzing the qualities adapted to the station [of the presidency]. They should not be officeholders, who might have “too great [a] devotion” to the incumbent president; their number would be a safeguard against corruption.” But if no winner emerged, the election would fall to the House of Representatives, where each State delegation would cast a single vote.

Subsequent generations, missing its inner spirit, have ruined it, like a vain fool daubing new streaks on an old masterpiece in the conviction he is improving it when it’s no longer even recognizable. Modern democracy has destroyed the essence of the thing; yet it flatters itself that it has preserved the Constitution, only because it has preserved its words while ignoring, or willfully forgetting, their import.

[The] original Senate no longer exists. The Seventeenth Amendment virtually abolished it by requiring the popular election of senators; before that, senators were chosen by State legislatures, because the Senate was supposed to represent the interests of State governments and to prevent usurpation of their powers. The House was to speak for the people, the Senate for the States.

When the Senate was converted to a popular body too, it lost its rationale and became as superfluous as the Electoral College now is, imperfectly duplicating functions better performed by the House: instead of representing the States equally, it represents the people unequally. The States, meanwhile, have been reduced to mere administrative subdivisions of a monolithic nation-state. They have lost the defining mark of a true State, which is sovereignty, and such powers that they retain are held not by right, but by the sufferance of the federal government.

But not one American in a hundred (and perhaps not one senator in a hundred) understands all this. Nearly everyone believes the cheerful myth that nothing has changed since 1789.

But everything has changed. No American should read the Constitution without a sense of loss. We would all be much freer if the US government played by its own rules. But there is no way to force it to do so as long as Americans remain ignorant of their own political heritage.”

(A Weird Election, Joseph Sobran, Sobran’s Real News of the Month, March 2001, Volume 8, Number 3, excerpts pp. 3-4)