The United States Constitution

A Fact Beyond Dispute

Below, Wilmington, North Carolina editor Edward Cantwell communicates with Charles Wilkes of New York, a naval officer and explorer, regarding his views on political independence. The latter, as commander of the USS San Jacinto in early November 1861, acquired infamy for seizing the British mail steamer Trent. Cantwell enclosed his views presented to the North Carolina House of Commons on December 3, 1860.

A Fact Beyond Dispute

“A Plan of Adjustment through the Treaty Making Powers of the President and Senate.”

House of Commons, Raleigh, December 31, 1860.

I believe in the right of secession, and unless the Northern people, through their representatives in Congress and their State legislatures, shall not immediately grant us of North Carolina the justice and guaranties we demand, I am in favor of immediate secession on the part of this State and the other Southern States.

The newspapers of the day do not give us any assurance that we can obtain these without bloodshed, but you who occupy a prominent position at the Capital, and may therefore be better informed than they, think otherwise, and you ask me to state what, in my opinion, will restore peace, and prevent a further disruption of the Union.

I am of the opinion that it is not too late to save the present American Union, and to prevent civil strife in North Carolina, and elsewhere, by the adoption of a wise and bold statesmanship, and that the means of doing so are within the means of Mr. Buchanan, and may at once be instituted by him, without any new step on his part, or sacrifice of his published opinions, and without any surrender or further compromise of principle on the part of the South.

If you will turn to the letter of Mr. Daniel Webster to the Chevalier Halseman . . . on the recognition of Hungarian independence, and to the instructions given to our Minister in Mexico, etc., you will perceive that the federal government has been for many years committed under different administrations to the doctrine that a government de facto, quietly possessed of all the powers of the State, and peacefully engaged in their unlimited exercise, however originated, and composed of one man or many, is to all intents and purposes a government de jure, and entitled to be recognized and regarded as such by all other powers.

Whatever may be the opinions of Mr. Buchanan upon the subject of secession, it is a fact beyond dispute, I apprehend, that the South Carolina Convention now in session at Charleston, & whose delegates are in [Washington] demanding recognition as the ambassadors of a foreign State, are de facto possessed of all the powers of the State of South Carolina, and are on this day publicly, openly and notoriously engaged in the exercise of every function which belongs to the government of the State, and that, right or wrong, they are fully prepared to maintain their independence by force of arms wherever required.

I would like to know, even though we did not recognize the right of secession, how can we offer South Carolina a different treatment than that which Texas and Mexico received from Great Britain and the United States? The case becomes stronger, when the federal authority with us has announced that the Constitution does not warrant the employment of force, or a declaration of war against a seceding, or if you please, a revolted State.”

(The Papers of William A. Graham, Vol. V, 1857-1863. M. Williams & J.G. De Roulhac Hamilton, NC Department of Archives and History, 1973, pp. 210-212)

Preserving Peace and Good Order

It should be kept in mind that the so-called 14^th Amendment was never ratified by the requisite number of States in 1868 and merely declared in force. In that year there were 37 States in the union – a three-fourths vote needed for amendment passage would require 28 States to the positive. Only 22 States had actually ratified the amendment when it was declared passed. Since irregularities were so obvious, Congress then passed a concurrent resolution declaring the amendment to be a part of the Constitution. It was passed in haste, not referred to any committee and discussion was restricted.

Preserving Peace and Good Order

“In 1883 the Supreme Court declared the conspiracy clause of the Congressional Ku Klux Act of 1871 unconstitutional and restricted the application of the law to acts of a State through its officers and not to private citizens. In the same year it declared the Civil Rights Act of 1875 as invalid.

The act made it criminal for any person to deny to any citizen on account of race or color the full and equal enjoyment of inns, public conveyances, theaters and other places of amusement. The act finally reached the Supreme Court as a result of a hotel hotel-manager in the South having refused accommodations to Negroes, and the Court ruled that the Fourteenth Amendment gave Congress the power to laws enforcing the amendment, but not the power to regulate internal domestic affairs.

The decision contained the principle upon which the [Southern States have] rested their right to set up social barriers between themselves and Negroes. The principle was that the Fourteenth Amendment prohibited State governments from discriminating between whites and blacks in its general legislation, but that this by no means prevented a hotel keeper from or theater-manager from making such a discrimination, nor did the amendment give to Congress any power to regulate theaters or hotels. This power, the Court insisted, still remained in the control of the States.

The Court opinions thus far reveal that the tribunal considered that the Fourteenth Amendment merely aimed to protect the Negro’s civil and political rights, but that it dii not give him a social status, equal, superior or otherwise. The matter of giving him whatever status he may have, therefore, has been left to the individuals in the States . . .

The Court summed up its whole attitude on the subject in the case of Plessy vs. Ferguson in 1896. The State of Louisiana had required that railway companies in the State provide equal but separate accommodations for white and Negro passengers. Plessy was ejected from a white compartment and arrested for violating State law.

He protested and finally got his protest before the Supreme Court, but the Court held that law was constitutional since it did not interfere with the civil or political equality of the races but was intended rather to preserve peace and good order. The law, the Court said, did not stamp the colored race with any badge of inferiority unless the race chose to put that construction upon it, and equal rights could not be secured to the Negro by an enforced comingling of the two races.”

(The Changing South. William J. Robertson. Boni and Liveright Publishers, 1927, pp. 82-84)

Intruders Within States

It is essential to understand that the word “union” was merely a convenient word to describe the agreement between 13 independent States (as referred to by the 1783 Treaty of Paris and the Articles of Confederation), who in 1789 agreed to a newer governing covenant between them. Of course, this in no way transferred a State’s population and territory into what was referred to as “the Union.” Below, the word “conquered” below reveals all. Hamilton noted in his 1789 Federalist opinion that a war between member States would mean the Constitution was at an end.

Rev. Orestes Brownson (1803-1876) was a Vermont-born preacher who “inclined to the view of his friend, John C. Calhoun, holding that the united States are a confederation of sovereign or independent States,” which was in line with the 1783 Treaty of Paris as England listed each former colony as an independent State.

Intruders Within States

“It was apparent on this theory – that no State could secede – that Lincoln built his executive plan for reorganizing the rebellious States as States in the Union in December 1863.

Brownson objected to the plan primarily as it was a distinctly executive plan [but] in no case, he maintained, did it come within the jurisdiction of the President to institute either military of civil governments in the conquered States or territories. [He] looked upon Lincoln’s plan or reorganization as a dangerous and revolutionary assumption of power contrary to our Constitution and republican form of government. He exposed sharply the equally discrediting alternatives in volved in Lincoln’s plan:

“If the States are still in the Union, the President violates their constitutions, and wars against the essential principle of every State constitution [no right to interfere]; if they are not States in the Union, but, as we maintain, population and territory belonging to the Union, then he transcends his province as executive of the government and attempt to do on executive authority what only Congress can do.”

If the States are still in the Union, as the administration claims, by what right, Brownson wanted to know, had Lincoln appointed Andrew Johnson as governor of Tennessee; Col Hamilton governor of Texas; Mr. Phelps governor of Arkansas; Eli Thayer as governor of Florida; Edward Stanly as governor of North Carolina; and Col. Shepley as governor of Louisiana. If these respective territories are States in the Union, then these so-called governors are intruders, without any constitutional authority, for under the American Constitution the right to choose its own officers is reserved to the State, “and there is no authority in the President or Congress to appoint a single State officer, not even a constable.” The error of the Lincoln administration, is denying that a State can secede.”

(Orestes A. Brownson: A Definitive Biography. Thomas R. Ryan. Our Sunday Visitor, 1976, p. 635)

A War Far, Far Away

The following reminds us of Robert E. Lee’s mid-December 1866 letter to Britain’s Lord Acton, noting that the new highly centralized US government had become despotic at home as well as aggressive abroad.”

The colonial French stronghold of Deinbienphu surrendered to North Vietnamese forces on May 7,1954, leading to the partition of Vietnam into North and South. The latter would be protected by inclusion into the new SEATO defense treaty, which in hindsight was a gross mistake. The author below noted that Eisenhower did “Americanize” the region and commit US prestige to defend a government, which to use Dulles’s phrase, “would lose the support of the people.” It had been Eisenhower himself who predicted the consequences. It would be Eisenhower’s successors who would have to face them.”

A War Far, Far Away

“Still, neither Dulles nor Eisenhower were willing to throw in the towel [in late-April]. They quickly devised an alternative plan by which a United Action coalition could be arranged among France, the ANZUS countries, and the Associated States. Dienbienphu would be lost, but the French could withdraw into defensible enclaves where they could be supported by American air and sea power. The British could join the coalition later. Eisenhower sounded out the Republican leaders.

“There are plenty of people in Asia,” he explained, “and we can train them to fight well. I don’t see any reason for American ground troops to be committed in Indochina, don’t think we need it, but we can train their forces and it may be necessary for us eventually to use some of our planes or aircraft off the coast and some of our fighting craft we have in that area for support.” The essential point was, Eisenhower concluded, “Where in the hell can you let the Communists chip away anymore [sic]. We just can’t stand it.”

“[During a National Security Council meeting on April 29, Eisenhower noted that] the position of the US as the leader of the free world necessitated associates. Without allies “the leader is just an adventurer like Genghis Kahn.” Further, “We would in the eyes of many Asiatic peoples merely replace French colonialism with American colonialism . . . [and] be everywhere accused of imperialistic ambitions. A unilateral intervention would mean a general war with China and perhaps the USSR, which the US would have to prosecute separated from its allies.”

(Reevaluating Eisenhower: American Foreign Policy in the Fifties. R. Melanson; D. Mayers, editors. University of Illinois Press. 1989, pp. 142-143)

“Rebels and Patriots”

The following address was delivered to those attending the annual Confederate Memorial Day observance in Columbus County, North Carolina.

“Rebels and Patriots”

In this cemetery today we honor brave American patriots who defended their families, hearths & country against an invading enemy 1861-1865, many of whom died doing so. Many also remain in distant unmarked graves, and whose families waited and waited for their return. Their tombstones are the many granite monuments erected all across the South.

Let us never cease to remember that these patriots were no different than the patriots of 1776, as both fought for freedom, political independence and self-government. They both proclaimed that governments derive their just powers from the consent of the governed. And it is most important for us today to recognize that the very root the 1776 -1783 war was secession from England; and the very root of the 1861-1865 war was secession from the United States.

Today’s good news is that more are coming to recognize that the 1861 war was simply another American war of independence, though there are some holding onto their long monopoly of the narrative who do not like competition.

During the 1776-1783 Revolution, local men of the militia – mostly farmers and laborers – fought Tories & Loyalists who adhered to the British crown. This militia fought bravely at several engagements not far from this spot where we are today.

Please allow me to pose this question to you: What difference existed between the patriots at the Moore’s Creek battle in 1776, and the patriots defending Fort Fisher in January 1865? We know in both cases they defended the very same thing – political independence – with their homes, farms and families behind them. They both were there to repel an invader whose intent was to deny them political independence.

Then how is it that we are told incessantly that the patriots of 1776 fought for political independence from England, but the “rebels” of 1861-1865 were “defending slavery?”

Let’s examine the facts.

In June of 1775 a desperate North Carolina Royal Governor, Josiah Martin, proclaimed African slaves free and armed those who adhered to his authority. Only 4 months later, an equally desperate Virginia Royal Governor, Lord Dunmore, creating a black “Corps d’Afrique” to assist in subduing the “rebels.” From this point on, and as Washington did not enlist slaves, the “rebels” were fighting the emancipators.

Eighty-seven years later, when Americans in the South sought political independence from what they viewed as an oppressive government, a desperate Abraham Lincoln called them “rebels” and then followed the royal example of proclaiming African slaves free – but only within the new Confederacy.

In mid-January 1863, Ohio’s “Copperhead” US Congressman Clement Vallandigham excoriated his fellow northern congressmen for denouncing “Southern rebels,” stating:

“After 2 years of brutal warfare the North has failed to subjugate 10 million “rebels” you say. And you call them “rebels? “Your own fathers & grandfathers were “rebels.” The large canvas portrait of General Washington looking down upon us in this chamber was a “rebel.” Yet we, sitting here today, and cradled in rebellion, make the word “rebel” a reproach.”

You have every right to honor annually the “rebels” buried around us and hold them up as worthy of emulation. In 1861, your local “rebels” formed several companies to join North Carolina regiments, and as the war took its toll, your Junior Reserves did their part in the ranks. We must also recognize the supreme dedication of the ladies at home – “rebels” as well – who formed Soldiers’ Aid Societies to collect supplies and maintain roadside hospitals.

As a last word, I want to emphasize that the “rebels” we honor today fought a just cause defending the sacred 10th Amendment – simply interpreted as home rule and “States rights” – without which the United States Constitution would not have been ratified by North Carolina.

Deo Vindice!

John Bernhard Thuersam, Historian and Author

www.circa1865.org

Devotion to Land, Bible and Constitution

The writer below notes that historians burdened with modern egalitarian standards often “do not grasp the most elementary concept of the sound historian: the ability to appraise the past by standards other than those of the present. They accept a fanatical nationalism which leaves no room for sectional variations.”

Devotion to Land, Bible and Constitution

Jefferson Davis [is condemned by biographers] as a prolonged conspirator against the Union. But the facts show that as late as 1860 he, as a United States senator, was advocating appropriations for the army he was to fight in less than a year. A proper sympathy for the sectional values would perhaps lead to a condemnation of Davis because he did not become a conspirator against the Union soon enough.

Davis was not one of the great revolutionists of history; he was too honorable for that. Unlike William L. Yancy and R. Barnwell Rhett, he was slow in understanding that the North was in a revolutionary conspiracy against the Constitution as he interpreted it and could be answered effectively only by counterrevolution. Allen Tate, the poet, is the only biographer who condemns Davis for not understanding that the aim of the plutocratic democracy of the North was to crush his beloved homeland.

Davis should be praised for finally recognizing the forces arrayed against his section and then heroically defending its concept of truth and justice. Despite physical weaknesses, he maintained a proud but ragged nation for four years against the powers of wealth, progress and patriotism. After defeat he did not repent.

For his failure to repent, historians will not forgive Davis. He did not respond to the new wave of nationalism which came after the Civil War. He was no pragmatist, no evolutionist. Until his death, he remained devoted to his section, the soldier who found greatest virtue in continuing the battle charge after the enemy has inflicted a grievous wound and remained the scholastic who accepted the Bible and the Constitution just as they are written. He was as optimistic in his devotion to the antique values of the South as was Don Quixote to the antique values of an older land.

If the historians of the South were as tolerant of our past as are the European historians of theirs, they would confer on the defeated President of the Confederacy as many honors as have been conferred on the famous Spanish knight.”

Tolerating the South’s Past. Francis Butler Simkins. Journal of Southern History, Vol. XXI, No. 1, February 1955, pp 33-8)

Daniel Webster’s View of the Constitution

In his 1881 “Rise and Fall of the Confederate Government”, Jefferson Davis revisits the words of New England orator and statesman Daniel Webster (1782-1852) regarding the sovereignty of the American States.

Daniel Webster’s View of the Constitution

“Mr. Webster held the views which were presented in a memorial to Congress of citizens of Boston, December 15, 1819, relative to the admission of Missouri as a State, drawn up and signed by a committee of which he was chairman, and which also included among its members Mr. Josiah Quincy.

Mr. Webster speaks of the States as enjoying “the exclusive possession of sovereignty” over their own territory, calls the United States “the American Confederacy” refers to them “the only parties to the Constitution, contemplated by it originally, [and who] were the “thirteen confederated States.”

In letters written and addresses delivered during the Administration of Mr. [Millard] Fillmore, he repeatedly applies to the Constitution the term “compact” which, in 1833, he had so vehemently repudiated. In his speech at Capon Springs, Virginia, in 1851, he says:

“If the South were to violate any part of the Constitution intentionally and systematically, and persist in doing year after year, and no remedy could be had, would the North be any longer bound to the rest of it? And if the North were, deliberately habitually, and of fixed purpose, to disregard one part of it, would the South be bound any longer to observe its other obligations?

How absurd it is to suppose that, when different parties enter into a compact for certain purposes, either can disregard any one provision and expect, nevertheless, the other to observe the rest!”

“I have not hesitated to say, and I repeat that, if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Constitution which its respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain cannot be broken on one side and still bind the other side.”

(Rise and Fall of the Confederate Government, Volume I. Jefferson Davis. D. Appleton & Co., 1881, pp. 166-167)

A Common Agent Rather Than a King

Jefferson Davis mused in his magisterial Rise and Fall: “As time rolled on, the General Government gathering with both hands a mass of undelegated powers, reached that position which Mr. Jefferson had pointed out as an intolerable evil – the claim of a right to judge the extent of its own authority.”

A Common Agent Rather Than a King

“In July 1776, the Congress of the thirteen united colonies declared that “these united colonies are, and of right ought to be, free and independent States.” [England’s] denial of this asserted right and the attempted coercion made it manifest that a bond of union was necessary, for the common defense.

In November of the following year, 1777, the Articles of Confederation and perpetual union were entered into by the thirteen States under the style of “The United States of America.” Under the Articles, no amendment to them could be made except by unanimous consent, which hampered the efficient discharge of the functions entrusted to the Congress.

What is the Constitution of the United States?

The whole body of the instrument, the history of its formation and adoption, as well as the Tenth Amendment, added in an abundance of caution, clearly show it to be an instrument enumerating the powers delegated by the States to the Federal Government, their common agent. It is specifically declared that all which was not so delegated was reserved.

On this mass of reserved powers, those which the States declined to grant, the Federal Government was expressly forbidden to intrude. Of what value would this prohibition have been, if three-fourths of the States could, without the assent of a particular State, invade the domain which that State had reserved for its own exclusive use and control?

It [is, I hope], been satisfactorily demonstrated that the States were sovereigns before the formed the Union, and that they have never surrendered their sovereignty, but have only entrusted to their common agent certain functions of sovereignty to be used for their common welfare.”

(Rise and Fall of the Confederate Government, Volume I. Jefferson Davis. D. Appleton & Co., 1881, pp. 192; 195-196)

Peaceful Separation No Longer Possible

In his December 3, 1860, State of the Union address, President James Buchanan stated that all that the South desired was to be let alone to manage its domestic institutions. Regarding the personal liberty laws of the Northern States, he declared they were in direct violation of the United States Constitution.

Buchanan further noted that waging war against a State desiring withdrawal was not a valid Federal power in the Constitution, but if the power existed, exercising it would produce a fraternal conflict in which “a vast amount of blood and treasure would be expended, rendering future conciliation . . . impossible.”

Peaceful Separation No Longer Possible

“Mr. Buchanan was an able man, but a very timid one. If he had the nerve to deal with the situation [of December 20, 1860] as its gravity demanded, I doubt exceedingly whether any other State [at the] South would have followed South Carolina into secession.

Had he withdrawn the troops from Sumter, it would have been such a conspicuous act of conciliation that the other States would not, I believe, have called conventions to consider the question of secession, or if they had the ordinances [they] would not have been passed. I was not one of those who believed there could ever be a peaceful separation of the States but could not convince our people of it.

I had years before become convinced by my association with Mr. Webster, that the North would never consent to it. I knew that secession meant war, and, therefore, did my utmost to prevent it. When the war came, however, it had to be met with spirit.

The chance for peaceful separation of the States was lost years before the war. It could have succeeded when the North wanted to go [the Hartford Convention], and again when Texas was annexed [when New England voiced secession], but not after.”

(The Life and Death of Jefferson Davis. A.C. Bancroft, editor. J. S. Ogilvie Publisher, 1889, pp. 145-146)

Truman’s War Bypasses Congress

Lincoln established the unconstitutional precedent of a president waging war without congressional approval. The following is drawn from a chapter entitled “A Costly Mistake: War Without Congressional Approval.” As a note of clarification, Sen. Robert Taft was not an “isolationist” but an anti-interventionist who advocated avoidance of European or Asian wars, concentrating instead on solving its domestic problems. He advocated a strong American military as adequate protection and opposed Truman’s unconstitutional actions.

Truman’s War Bypasses Congress

“After Sen. Scott Lucas of Illinois had read to the Senate on June 27 Truman’s initial statement committing US air and naval forces and ordering the fleet to neutralize Formosa, Senator James P. Kem, Republican of Missouri, rose: “I notice that in the President’s statement he says ‘I have ordered the fleet to prevent any attack on Formosa.’ Does that mean he has arrogated to himself the authority of declaring war?”

“A state of emergency exists,” Lucas said, ignoring the fact that Truman had not legally declared one. Based on the action of the United Nations Security Council,” Lucas explained, the President of the United States has ordered action. It is a demonstration of our keeping the faith.”

Republican Senator John Bricker of Ohio interposed, “Am I correct in saying that the President’s action was taken as a result of the cease-fire order issued by the Security Council? Lucas said that Bricker was correct as far as action in Korea was concerned. Watkins declared that Truman had taken a step leading toward war.

“The Congress is now in session,” the senator said, “and unless there is power in the United Nations to order our forces into action of this kind which may result in a major world clash, then I think we should have been informed by the President in a message to Congress today. As I recall, we were told time and time again when we were considering the [North Atlantic Treaty Organization] that nothing would take us into war under that pact without action by Congress. The President could not do it . . . Now, according to the action taken, by the mere order and request of the United Nations, our troops can be sent into a fighting war without Congress saying ‘yes or no.’

Article I, Section 8 of the Constitution provides that Congress shall have the power to declare war.

The big gun went off in the Senate on June 28. In a crackling speech, Robert Taft, “an old-time isolationist” to Truman – alleged:

“a complete usurpation by the President of authority to use the armed forces of the country. His action has brought about a de facto war with the government of northern Korea. He has brought that war about without consulting Congress and without congressional approval. We have a situation in which in a far-distant part of the world one nation has attacked another, and if the President can intervene in Korea without congressional approval, he can go to war in Malaya or Indonesia or Iran or South America.” With but the slightest detour on a map Taft might have included Vietnam.

“Mr. President”, a reporter asked, “everybody is asking in this country, are we or are we not at war?”

“We are not at war,” Truman replied and later added that “the members of the United Nations are going to the relief of the Korean Republic to suppress a bandit raid . . .”

“Mr. President, would it be correct, against your explanation, to call this a police action under the United Nations?”

Truman responded, “Yes, that’s exactly what it amounts to . . .”

Again, Truman had let a reporter put words in his mouth that were later to be held against him. He did not initiate, nor volunteer, the phrase “police action” any more than he had “red herring,” but the result was to be the same as if he had.”

(Tumultuous Years: The Presidency of Harry S. Truman, 1949-1953. Robert J. Donovan. W.W. Norton & Company, 1982, pp. 219-223)