Circa1865

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

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

That Was the Problem We Inherited

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

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

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

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

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

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

Well before the Dred Scott case of 1857 was the question brought before Connecticut Judge David Daggett, chief justice of the court of errors, in October 1833 raising the validity of a State law which “forbid any school, academy, or literary institution for the instruction of colored persons who are not inhabitants of this State.” The law was in place as the State’s colored schools tended to “greatly increase the colored population of the State and thereby to the injury of the people.” The defendant, a free Negro, insisted that the law was unconstitutional as it was in violation of the United States Constitution regarding the equal rights of citizens of all States.”

Regarding “citizens,” only the 1789 Constitution’s Article 4, sec. 2 states: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”  The Dred Scott case of 1857 rested upon this, and the question before the Court was simply whether Scott was a citizen of a State, as argued below.

To underscore the validity of the Constitution’s Article 4, sec. 2, the victorious Republican party was forced to follow the amendment route as it sought manipulation of the South’s black vote.

From Connecticut to Dred Scott

“Are slaves citizens? At the adoption of the Constitution of the United States [in 1789], every State was a slave State . . . We all know that slavery is recognized in that Constitution; it is the duty of this court to take that Constitution as it is, for we have sworn to support it . . . Then slaves were not considered citizens by the framers of the Constitution.

“Are free blacks citizens? . . . to my mind it would be a perversion of terms, and the well-known rules of construction, to say that slaves, free blacks or Indians were citizens, within the meaning of that term as used in the Constitution. God forbid that I should add to the degradation of this race of men; but I am bound, by my duty, to say that they are not citizens.”

In the case of Hobbs vs Fogg the State of Pennsylvania furnished another strong precedent for the decision of the [Dred] Scott case. At the election of 1835 a negro offered to vote. Solely on account of his color, the judges of election refused the privilege. The Negro insisted that “as a freeman and citizen of the State” the provisions contained in the State constitution and laws entitled him to the right of suffrage. The judges justified themselves on the ground “that a free Negro or mulatto is not a citizen within the meaning of the Constitution and law of the United States, and of the State of Pennsylvania, and, therefore, is not entitled to the right of suffrage . . .” The chief justice delivered the opinion, to which there was unanimous assent [to declare] “that no colored race was party to our social compact. Our ancestors settled the province as a community of white men; that the blacks were introduced into it as a race of slaves; whence an unconquerable prejudice of caste, which has come down to our day . . .” This is followed by “Yet it is proper to say that [Article 2, section 4] of the Federal Constitution, presents an obstacle to the political freedom of the Negro, which seems to be insuperable.”

Now then, in addition to the presumption that [those] of pure African blood whose ancestors had been American slaves, was presumed to have been born and to have continued a slave, these laws show that all the States had given to the Federal Constitution, from the days of its ratification down to the Dred Scott decision, a practical interpretation agreeing unanimously that a Negro, though free and a native of a State, was not a person as the word ‘citizen’ defines as that word was used by the framers of the Constitution.”

(The Legal and Historical Status of the Dred Scott Decision. Elbert William R. Ewing. Cobden Publishing Company, 1909, pp. 67-69)

Correcting the Record

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

Beauvoir, Mississippi

June 20, 1885

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

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

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

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

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

Below, Alexander Stephens reviews the constitutional dilemma Abraham Lincoln faced when formulating his plan to resist the American South’s decision for political independence from the industrialized north.

Congress Alone Has the Power

“[Mr. Lincoln had] sworn to “preserve, protect and defend the Constitution” and “faithfully to execute the office of President of the United States.” This oath imposed a solemn obligation on him not to violate the Constitution, or to exercise, under color of his office, any power not conferred upon him by that instrument. He was required to see to the faithful execution of the laws of the United States, as passed by the Congress of States, and as construed by the Judiciary.

He said in the first of these proclamations that he made a call for the militia “in virtue of the power vested in him by the Constitution and the laws.”

But no such power was vested in him by the Constitution, nor was there any law authorizing him “to set on foot” the naval blockade as he did in the second of these proclamations. He said he did this in pursuance of law, but there was no such law.

In reference to the first proclamation, Congress alone has power, under the Constitution, to declare war and raise armies. Congress alone has the power to provide by law, for calling out the militia of the several States.

The President under the Constitution has no power to call out [State] militia to suppress an insurrection in a State, except “on application of the Legislature or the Governor, when the Legislature cannot be convened.” This was one of the provisions of the United States Constitution which Mr. Lincoln swore to “preserve, protect and defend.”

That clause of the Constitution is amongst the mutual covenants between the States guaranteeing to each a “Republican Form of Government” and protection against invasion and domestic violence.” This contemplated and authorized no interference whatsoever on the part of the Federal authorities with the internal affairs of the several States, unless called upon for that purpose, unless specifically requested by a State.

On this point, Mr. Stephen Douglas, in his speech of March 15^th, in the U.S. Senate, in the policy of withdrawing Federal troops from the forts in seceded States, was so clear, conclusive and unanswerable. Mr. Douglas said:

“But we are told that the President is going to enforce the laws in the seceded States. How? By calling out the militia and using the army and navy!? These terms are used as freely and flippantly as if we were in a military government where martial law was the only rule of action, and the rule of the Monarch was the only law to the subject.

Sir, the President cannot use the Army or the Navy, or the militia, for any purpose not authorized by law; and then he must do it in the manner, and only in the manner, prescribed by law. It must be requested by the State’s legislature, or Governor.”

(A Constitutional View of the Late War Between the States, Vol. II. Alexander H. Stephens Sprinkle Publications, 1994 (original 1870), pp. 397-402)

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

Citizenship as Intended

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

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

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

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

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

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

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

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

The following highlights Pennsylvania delegate James Wilson’s remarks during the debates on adopting a new Constitution, as that State was to secede from the existing Articles of Confederation. He argued that the new governing document would not consolidate all States under one potentially despotic government.

A Government Best Suited to America

The delegates of the Pennsylvania Convention at Philadelphia assented to and ratified the Constitution of the United States of America, on the 12^th day of December 1787.

“No allusion is made to the character of the instrument or of the understanding of the members of the Convention of it, farther than their styling it a “Constitution for the United States of America.” That is, a Constitution for States United, and not for the whole mass of the people of these States in the aggregate. This of itself is quite enough to show that they considered it Federal or Federative in its character!

But we are not left in doubt or to inference on this point. The debates in the Convention of Pennsylvania have in part been preserved. The speeches of Mr. [James] Wilson . . . throw much light upon the subject. What he said in the State Convention, touching the character, or nature of the Constitution, which was finally agreed upon, is entitled to great weight, and particularly all his disclaimers, as to its being a Consolidation of the whole people of the country into one single grand National Republic.

On the one hand, it is suggested, that given the United States contains an immense extent of territory and a despotic government is best adapted to that extent. On the other hand, however, the citizens of the United States would reject with indignation the fetters of despotism. What, then, was to be done? The idea of a Confederate Republic presented itself.

Its description is ‘a Convention, by which several States agree to become members of a larger one, which they intend to establish. It is kind of an assemblage of societies that constitute a new one, capable of increasing by means of further association.’ (Montesquieu, b. ix, c.1) The expanding quality of such Government is peculiarly fitted for the United States, the greatest part of whose territory is yet uncultivated.

In another speech, on 1^st December 1787, as the discussion progressed, he said: “We have heard much about the Consolidated Government.  I wish the honorable gentlemen would condescend to give us a definition of what is meant by it. It may be said, and I believe it has been said, that a consolidated Government is such as will absorb and destroy the Governments of the several States.

As to the belief that the proposed Constitution is a Consolidated Government which puts the thirteen United States into one – if it is meant that the General Government will destroy the Governments of the States, I will admit that such a government would not suit the people of America.”

(A Constitutional View of the Late War Between the States, Alexander H. Stephens. Sprinkle Publications, 1994 (Original: S.A. George, Printers, 1868), pp. 209-221)

In the judgement of George Washington, the government of the US was in form and nature a “Confederated, or Federal Republic” and all States within were small republics themselves. Further, the federal agent of the States was not a “republic,” but only the assigned agent of these individual republics. Montesquieu affirmed that in a confederation, the States do not forfeit or part with their individual sovereignty. Philosopher and diplomat Emmerich de Vattel asserted as well that “several sovereign and independent States may unite themselves together by a perpetual Confederacy without ceasing to be, each individually, a perfect State, and together constitute a federation.

Abraham Lincoln ended this original intent of the Founders in 1861 with his war upon States wishing to voluntarily depart the 1789 agreement. Alexander H. Stephens wrote postwar that the 1861-1865 conflict was the result of Lincoln’s abuse of powers and forced national consolidation.

Washington’s Confederate Republic

“In the popular mind in the post-Revolution time, those representing the citizens of the States at large, each acting for themselves in their sovereign capacities.

“[The various] demonstrations, devices, mottoes and symbols, clearly showed how the great mass of people, in all the States, understood the new Constitution. It was nothing but a more perfect bond of union between the States. “Federal” was the watchword of the day in Boston, New York, Philadelphia, Baltimore, Richmond and Charleston. It was the grand symbolized idea throughout the whole length and breadth of the land. There can be no doubt that the people thought they were adopting a Federal Constitution – forming a federated union.

Now then, what is the meaning of this word “federal,” which entered so deeply into the thoughts, hearts and understandings of the people of that day?

Dr. Johnson, the highest authority of that day, in his Dictionary, thus defines the word: Federal – (Foedus, Lat.)  relating to a League or Contract. Federate, he defines (Federatus, Lat.) leagued, joined in a Confederacy. The great American lexicographer Noah Webster, says of this word “Federal,” that it is derived from the Latin word “Foedus” which means a League. A League he defines to be “an Alliance or Confederacy between Princes or States for their mutual aid or defense.” And in defining the meaning of the word “Federal,” he uses this language: “Consisting of a Compact between States or Nations; founded on alliance by contract of mutual agreement; as, a Federal Government, such as that of the United States.”

Federal, from its very origin and derivation, therefore, has no meaning and can have none, disassociated from a Compact or Agreement of some sort, and it is seldom ever used to qualify any Compacts or Agreements except those between States or Nations. So that Federal and Confederate mean substantially the same thing.

Washington, in one of his letters which I have just read, spoke of the new Government as “a Confederacy.” In another, to Sir Edward Newenham, dated the 20^th of July, 1788, he speaks of the new Government then ratified by enough States to carry it into effect as a “Confederated Government.” In . . . 1789 he expressed his conviction that “his happiness . . . that “the Senate would at all times cooperate in every measure which may tend to promote the welfare of “this Confederated Republic.” These are the terms by which he characterized “the union” after the present Constitution was formed and after it was in operation. There is no difference between the words Federal and Confederated as thus used and applied. We see that Washington used them both, at different times, to signify the same thing, that is, the Union of the American States under the Constitution.”

(A Constitutional View of the Late War Between the States, Alexander H. Stephens. Sprinkle Publications, 1994 (Original: S.A. George, Printers, 1868), pp. 167-170)

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

States Above Federal Authority  

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

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

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

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

The author below was born in Ireland in 1822 and 9 years later came with his family to Philadelphia. He later studied law and theology before moving to Iowa in 1843 and was admitted to the bar in 1847. Politically active, Mahony was elected to the Iowa House of Representatives twice; co-founded the Dubuque Herald in 1852 and elected twice as Dubuque County sheriff.

He was arrested in mid-1862 for criticism of Lincoln’s government, held in Old Capitol Prison, and released in November after signing a document stating that he would “form an allegiance to the United States and not bring charges against those who had arrested and confined him.”

It was Lincoln’s predecessor, James Buchanan, and his Attorney General Black, who both determined that to wage war against a State and adhere to its enemies was the Constitution’s very definition of treason.

Lincoln’s War Proclamation

“One of the most flagrant acts of Executive violation of the United States Constitution was the proclamation of the third of May 1861, providing for the increase in number of the regular army and navy, and prescribing that volunteers called into the service of the United States under that proclamation should serve for a period of three years if the war might continue during that period. As part of the history of the subversion of the government, this proclamation is referred to as evidence of fact.

The United States Constitution, in the most positive, express and unequivocal terms, delegates to Congress the sole authority both to raise armies and to make rules for their government, as well as those of the naval force. This Constitutional provision was disregarded by the President in his proclamation of the third of May. He assumed the power in that proclamation which the Constitution had vested in Congress alone, and which no one ever supposed that a President had a right to exercise.

Thus, by almost the first official act of Lincoln did he violate the Constitution, which, little more than a month previous he had taken an oath to “preserve, protect and defend.” This oath, it seems, he has since construed so that it does not require him to obey the Constitution, as if he could both preserve, protect and defend it by the same act which disobeys it.

It was in vain that the Constitution vested in Congress only the power to raise and support armies, to provide and maintain a navy, and to make rules for the governing of the land and naval forces. Lincoln by his proclamation assumed the right and power to do all this – a right which scarcely any monarch, if a single one, would dare to assume, and a power which no one but a usurper would attempt to exercise.”

(Prisoner of State. Dennis A. Mahoney. Addressed to Secretary of War, Edwin Stanton and entered by Act of Congress in the year 1863. Published by Crown Rights Book Company, 2001, pp. 29-31)

A bronze equestrian monument of Maj. Gen. John F. Hartranft stands majestically outside the capitol building at Harrisburg, Pennsylvania. This memorial still stands today despite Hartranft waging war against Americans in the South who fought for political independence as did their ancestors in 1776. Under the Constitution Hartranft swore fealty to, Article III, Section 3 is clear regarding treason as waging war against a State.

After the death of Lincoln, Hartranft served as a special provost marshal during the show trial and predictable convictions, including that of Mary Surratt. He afterward personally led these Americans to the gallows in early July 1865.  In 1872 he became governor of Pennsylvania governor and won a second term in 1876 despite being accused of bribing leaders of the Molly Maguires to induce members to vote for him.

Monument to a War Hero Politician

Just prior to the battle of First Manassas in July 1861, the enlistment period of then-Col. Hartranft’s Pennsylvania regiment had expired, and they returned home. Assigned as an aide to another command during the battle, he was unsuccessful in his attempt to stem the wholesale retreat of Northern soldiers. For this latter action Hartranft was to be awarded the Congressional Medal of Honor in 1886.

In April 1862, Hartranft was colonel of the 51^st PA regiment during Gen. Burnside’s invasion of North Carolina’s Outer Banks. The resulting occupation of the islands and afterward New Bern was marked by the wholesale looting and pillaging of businesses and civilians.

In May 1863, Hartranft’s 51^st Pennsylvania Regiment was near Jackson, Mississippi as Grant approached Vicksburg. At that time, the Lieber Code which would govern the conduct of northern armies in the field was being promulgated – it forbade the waging of war against innocent civilians.

At Jackson, one of Hartranft’s officers later wrote in 1866 of the 51^st Pennsylvania troops who “broke ranks and ransacked the town of Jackson for tobacco, whiskey and valuables . . . Grocery, dry goods, hat, shoe, millinery and drug stores were broken open and “cleaned out” of every vestige of their contents: private dwellings entered and plundered of money, jewelry and all else of any value were carried off; crockery, chinaware, pianos, furniture, etc., were smashed to atoms; hogsheads of sugar rolled into the street and heads knocked in and contents spilled . . . and soon some very splendid buildings were reduced to ashes.”

The writer continues: “As the 51^st Pennsylvania Regiment was marching out [of town] it made quite a ludicrous appearance, for the men were clad in female attire, some with hats having crowns a foot high, some with masks on, shawls, frock skirts, with crinoline all over instead of underneath . . . marching with bonnet and bandboxes in their hands.

They were followed by the colored females, screaming with delight and begging the “Yankees” to “gib us dat bonnit,” and “Massa, do please gib me dat frock.” By the time they reached their destination the colored ladies were in possession of nearly every particle of female wear which the men had stolen.”

(History of the Fifty-first Regiment, Pennsylvania Volunteers. Thomas H. Parker, King & Baird, Printers, 1869, pp. 85; 363-365).