Circa1865

As it did before and during the war several times, the South promoted compromise to maintain peace between the sections – and had the new Republican Party been interested in true compromise and saving the Union, there might have been a Compromise of 1861. The author below traces the thread that led to war, though secession of the American South did not cause war – it did cause the North to choose war and conquest.

Bernhard Thuersam, www.Circa1865.com

War with Mexico and a Million Dead Gringos

“Even before the Treaty of Guadalupe Hidalgo had been ratified, the Texas legislature on March 14, 1848, created Santa Fe County, which included almost all of New Mexico east of the Rio Grande. Military and civil officials in New Mexico were anxious to prevent the region from coming under Texas jurisdiction.

[Newly-elected President Zachary Taylor] was forthright in his statements regarding the Texas claim . . . and issued orders to the army to prevent county organization of New Mexico by the Texans. Southerners became so incensed that they were threatening to join the Lone Star State in secession if New Mexico east of the Rio Grande was not given to Texas.

Governor Peter H. Bell of Texas convened the legislature there in special session in August 1850 . . . and told [them] that they must meet the federal impediment “boldly, and fearlessly and determined. Not by further supplications or discussion . . .; not by renewed appeals to their generosity and sympathy . . . but by action . . . at all hazards and to the last extremity.”

This attitude was seconded by other Southerners; Alexander Stephens of Georgia declared in a speech before the House of Representatives that the first federal gun fired on Texas officials would be a signal for “free men” from the Delaware [River] to the Rio Grande to rise up against the Union. Taylor remained adamant, however; to such talk he crisply replied, “Disunion is treason.”

Fortunately for the nation the “Old Giants” were still active in Congress: Clay, Calhoun and Webster. Clay called for a compromise in a speech on January 29, 1850. California would enter as a free State; New Mexico would be given separate territorial status; Texas would be paid $10,000,000 for ceding its claim to New Mexico, thereby allowing it to pay its debts; and Utah would be given territorial status. Clay’s proposal met bitter debate, perhaps the most bitter in the history of Congress.

By September 5 all the measures proposed by Clay had been passed. Lumped together, these measures were called the Compromise of 1850 [and without] a doubt they preserved the Union and postponed civil war for a decade. But they killed the Whig Party . . . made . . . war almost inevitable [and led to the doctrine of popular sovereignty just four years later when the Kansas-Nebraska Act was passed.

Perhaps it is cold comfort to dismembered Mexico, but the “Mexican Cession” led in the next two decades to the death of a million gringos, as well as to sectional hatreds that persist to the present.”

(North America Divided, The Mexican War, 1846-1848, Seymour V. Conner & Odie B. Faulk, Oxford University Press, 1971, excerpts, pp. 173-176)

David Lawrence, editor of the US News and World Report, argued in late September 1957 that the Fourteenth Amendment to the US Constitution was never ratified by the requisite number of States, and is therefore null and void. This amendment has been used since 1865 as the basis for federal intervention into the constitutionally-specified authority of the individual States, both North and South.

Bernhard Thuersam, www.Circa1865.com

The Fourteenth Amendment a Disgrace to Free Government

“A mistaken belief — that there is a valid article in the Constitution known as the “Fourteenth Amendment” — is responsible for the Supreme Court decision of 1954 and the ensuing controversy over desegregation in the public schools of America

No such amendment was ever legally ratified by three-fourths of the States of the union as required by the Constitution itself.  The so-called “Fourteenth Amendment” was dubiously proclaimed by the Secretary of State on July 20, 1868. The President shared that doubt.  There were 37 States in the union at that time, so ratification by at least 28 was necessary to make the amendment an integral part of the Constitution. Actually, only 21 States legally ratified it.

So it failed ratification.  The undisputed record, attested by official journals and the unanimous writings of historians, establishes these events as occurring in 1867 and 1868:

1. Outside the South, six States — New Jersey, Ohio, Kentucky, California, Delaware and Maryland — failed to ratify the proposed amendment.
2. In the South, ten States — Texas, Arkansas, Virginia, North Carolina, South Carolina, Georgia, Alabama, Florida, Mississippi and Louisiana — by formal action of their legislatures, rejected it under the normal processes of civil law.
3. A total of 16 legislatures out of 37 failed legally to ratify the “Fourteenth Amendment”.
4. Congress — which had deprived the Southern States of their seats in the Senate—did not lawfully pass the resolution of submission in the first instance.
5. The Southern States which had rejected the amendment were coerced by a federal statute passed in 1867 that took away the right to vote or hold office from all citizens who had served in the Confederate army. Military governors were appointed and instructed to prepare a roll of voters. All this happened in spite of the presidential proclamation of amnesty previously issued by the president. New legislatures were thereupon chosen and forced to “ratify” under penalty of continued exile from the union. In Louisiana, a General sent down from the north presided over the State legislature.
6. Abraham Lincoln had declared many times that the union was “inseparable” and “indivisible”. After his death and when the war was over, the ratification by the Southern States of the 13^th Amendment abolishing slavery had been accepted as legal. But Congress in the 1867 law imposed the specific conditions under which the Southern States would be “entitled to representation in Congress.”
7. Congress, in passing the 1867 law that declared the Southern States could not have their seats in either the Senate or House in the next session unless they ratified the “Fourteenth Amendment”, took an unprecedented step. No such right — to compel a State by an act of Congress to ratify a constitutional amendment — is to be found anywhere in the Constitution. Nor has this procedure ever been sanctioned by the Supreme Court of the United States.
8. President Andrew Johnson publicly denounced this law as unconstitutional. But it was passed over his veto.
9. Secretary of State [William] Seward was on the spot in July 1868 when the various “ratifications” of a spurious nature were placed before him. The legislatures of Ohio and New Jersey had notified him that they rescinded their earlier action of ratification. He said in his official proclamation that he was not authorized as Secretary of State “to determine and decide doubtful questions as to the authenticity of the organization of State legislatures or as to the power of State legislatures to recall a previous act or resolution of ratification”.

He added that the amendment was valid “if the resolutions of the legislatures of Ohio and New Jersey, ratifying the aforesaid amendment, are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislatures of these States.”

This was a very big “if.” It will be noted that the real issue therefore is not only whether the forced “ratification” by the ten Southern States was lawful, but whether the withdrawal by the legislatures of Ohio and New Jersey — two northern States — was legal.

The right of a State, by action of its legislature to change its mind at any time before the final proclamation of ratification is issued by the Secretary of State has been confirmed with other constitutional amendments.

10. The Oregon Legislature in October 1868 — three months after the Secretary’s proclamation was issued—passed a rescinding resolution, which argued that the “Fourteenth Amendment” had not been ratified by three-fourths of the States and that the “ratifications” in the Southern States “were usurpations, unconstitutional, revolutionary and void” and that “until such ratification is completed, any State has a right to withdraw its assent to any proposed amendment.”

This is the tragic history of the so-called “Fourteenth Amendment” — a record that is a disgrace to free government and a “government of law.”  Isn’t the use of military force to override local government what we deplored in Hungary?

It is never too late to correct an injustice. The people of America should have an opportunity to pass on an amendment to the Constitution that sets forth the right of the federal Government to control education and regulate attendance at public schools either with federal power alone or concurrently with the States.

That’s the honest way, the just way to deal with the problem of segregation or integration in the schools. Until such an amendment is adopted, the “Fourteenth Amendment” should be considered null and void.  There is only one supreme tribunal — it is the people themselves.

Their sovereign will is expressed through the procedures set forth in the Constitution itself.”

(There Is No Fourteenth Amendment” David Lawrence, Editor, US News & World Report, September 27, 1957, inside rear cover)

Jefferson’s great admiration for Washington allayed his fears that the presidency might become monarchical – a fear that John Adams made real. Though Jefferson wrote that the true barriers of our liberty are our State governments, and that all States could not be restrained by one man and any force he could possess – he didn’t foresee Lincoln.

Bernhard Thuersam, www.Circa1865.com

Jefferson on Free Speech and Delegated Powers

“With respect to the Sedition Act, which he detested more and condemned first, he took the ground that this sort of definition of crime fell within none of the delegated powers, and that this sort of action was specifically prohibited to Congress by the First Amendment. Though he did not say so here, he completely repudiated the doctrine that the federal courts already had common-law jurisdiction over seditious libel.

He regarded the doctrine . . . as an “audacious, barefaced and sweeping pretension.” Also, in view of the fact that freedom of speech and the press are guarded against congressional action in the same amendment with freedom of religion, he held that whoever violated one of them threw down the sanctuary covering the others. It should be noted . . . that he did not here deny to States the right to judge how far “the licentiousness of speech and of the press may be abridged without lessening their useful freedom.” This is certainly not to say that he set State rights above human rights . . . [but] he was not warning against possible misuse of State power, and to him it was federal power that represented the clear and present danger.

In the first of his resolutions [Kentucky] Jefferson categorically took the position that whenever the general government assumed powers not delegated to it by the compact, its acts were “unauthoritive, void and of no force.” Denying that there was a “common judge” (of federal usurpation), he concluded that each party to the compact had “an equal right to judge for itself, as well as infractions as of the mode and measure of redress.

Some deletion (of Jefferson’s words in the written Kentucky Resolutions) was in order anyway, since the draft was prolix and repetitious…(and) after saying that in cases of the abuse of delegated, a change in the members of the general government by the people was the “constitutional remedy,” he made this assertion:

“where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy; that every State has a natural right in cases not within the compact . . . to nullify on their own authority all assumptions of power by others within their limits: without this right they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment over them . . .”

(Jefferson and the Ordeal of Liberty, Dumas Malone, Little, Brown and Company, 1962, pp. 403-405)

President Andrew Jackson, in early November 1832, sent a spy to South Carolina to monitor the nullification forces in South Carolina, and “transferred several military companies to Fort Moultrie and Castle Pinckney” in preparation for war against the State. Though using these measures to elevate his prestige, Jackson also urged Congress to lower the existing tariff and “attacked the protective system for the first time.” He had come to the view that like the national bank he opposed for making “the rich richer and the potent more powerful,” the Northern protective tariffs accomplished the same.

Bernhard Thuersam, www.Circa1865.com

War Clouds in Late 1832

“[Governor Robert Y.] Hayne’s [inaugural] speech was nothing short of a full-blown statement of State supremacy . . .”Fellow citizens, This is Our Own – Our Native Land,” declared Hayne.

“It is the soil of CAROLINA which has been enriched by the precious blood of our ancestors, shed in defense of those rights and liberties, which we are bound, by every tie divine and human, to transmit unimpaired to our posterity. It is here that we have been cherished in youth and sustained in manhood . . . here repose the honored bones of our Fathers . . . here, when our earthly pilgrimage is over, we hope to sink to rest, on the bosom of our common mother. Bound to our country by such sacred, and endearing ties – let others desert her, if they can, let them revile her, if they will – let them give aid and countenance to her enemies, if they may – but for us, we will STAND OR FALL WITH CAROLINA.”

The [South Carolina] legislature gave Governor Hayne authority to accept military volunteers, to draft any Carolinian between eighteen and forty-five (including unionists), and to call out the State militia. The legislators approved a $200,000 appropriation for purchasing arms and authorized Hayne to draw and additional $200,000 from a contingent fund.

On December 26 Hayne issued his proclamation asking for volunteers; by the beginning of 1833 the governor and his district commanders were raising, equipping and training an army. Soldiers constantly drilled in the streets, and for a season Carolina uniforms and blue cockades were standard fare in churches and at tea parties. Over 25,000 men – more than had voted for nullification in the first place – volunteered to defend South Carolina against Jackson’s armies.

[Former Governor James Hamilton’s military preparations] had a chance to win an immediate victory over the two badly exposed federal forts. Fort Moultrie had been built on Sullivan’s Island, and since South Carolina owned part of the island, Hamilton’s volunteers could lay siege to the fort. Castle Pinckney, erected on an island only a mile out from Gadsden Wharf, could be battered down by the nullifiers’ heavy cannon.

The necessity for a strategy of defense, however, weakened the possibility of quick victory. The governor, commanding his army with commendable restraint and caution, also knew that a concentration of troops might precipitate a needless war. Hayne insisted that volunteers train at home . . . [but with] the entire army in the uplands, Charleston would be vulnerable to a concentrated federal attack.

Hayne attempted to solve the dilemma with his mounted-minutemen plan. The governor asked each district to appoint a small cavalry unit which could race to Charleston on a moment’s notice. “If in each district only one hundred such men could be secured,” wrote Hayne, “we would have the means of throwing 2,500 of the elite of the whole State upon a given point in three or four days.”

(Prelude to Civil War, The Nullification Controversy in South Carolina, 1816-1836, William W. Freehling, Oxford University Press, 1965, pp. 264-266; 275-277)

Conservative Democrat George Wallace of Alabama sought his party’s presidential nomination in 1964, ran as presidential candidate of the American Independent Party in 1968, and then sought the Democratic nomination again in 1972 and 1976.

Bernhard Thuersam, www.Circa1865.com

Stand Up for America

“Labor leaders had tried to misrepresent the civil rights bill, and I intended to let the rank-and-file membership know what its passage really meant. One power it would grant to the executive branch would be the right to establish ethnic quotas in hiring, rather than on a basis of merit or ability. A member of a local union told me, “Governor, I am for you. I don’t like too much government interference in my life.”

During my stay in Kenosha [Wisconsin], a militant picket tried to hit me with a sign. Jemison, my security guard, took the full blow on his head. The man who assaulted us was arrested on a disorderly conduct charge, found not guilty, and released.

If this had happened to, say, [Democrat] Adlai Stevenson in Dallas, the liberal press would have cried, “shame,” and pointed with alarm to the danger from the militant right. It was not easy to campaign in an atmosphere in which those who opposed us were granted complete license to disrupt and destroy my right to speak. The double standard was operating again.

During one of my speaking engagements, a reporter asked me, “Do you have an alternative to the civil rights bill?” This was an easy one. “Yes sir,” the U.S. Constitution. It guarantees civil rights to all people, without violating the rights of anyone.”

I closed an address in Appleton by saying, “If the people of Wisconsin want a civil rights bill for Wisconsin, let them enact it in their own State. That’s the way it should be. But let’s not have the federal government telling us what to do or what not to do.”

In Milwaukee I told my delegates: “My campaign slogan when I was elected governor was “Stand Up for Alabama.” Tonight I want to expand it to “Stand Up for America.”

That slogan became and remained the heart of my political and economic beliefs. The sacred oath of office that every elected official takes is to protect and defend the Constitution against all enemies, foreign and domestic. This concept of loyalty to the Constitution precludes any transfer of sovereignty to any international political body [such as the United Nations] – which would be a treasonable violation of the supreme law of the land.

I believe George Washington would have had words to say about the civil rights bill and the growing power of the federal government. These words from his Farewell Address are significant today:

“It is important, likewise, that [leaders] should confine themselves within their respective Constitutional spheres, avoiding, in the exercise of the powers of one department, to encroach upon another. The spirit of encroachment tends to consolidate the powers of all departments in one, and thus to create, whatever the form of government, a real despotism.”

(Stand Up for America, George C. Wallace, Doubleday & Company, 1976, pp. 88-89)

Officers in the US military are sworn to defend the Constitution, not the government or flag of the government, the latter mentioned below as a justification for loyalty. William Rawle’s “View of the Constitution” which supported the idea of political secession, was a West Point text at least until 1840, when George H. Thomas graduated, and he was well aware of the seat of loyalty in the Constitution.

Bernhard Thuersam, www.Circa1865.com

Treason Against His Native State — Virginia?

“We have collected the most conclusive proof that General [George H.] Thomas had at first fully decided to come South and cast his lot with his own people . . . But, in the meantime, it may be as well to put into our records the testimony of Senator Cameron of Pennsylvania, in his speech in the United States Senate on the bill for the relief of General Fitz John Porter. Mr. Cameron, in the course of his defense of General Porter said:

“It became my duty to take charge of the railroad from Harrisburg to Baltimore, and while so engaged an incident occurred in my office which impressed me greatly at the time, and which it has always seemed to me should atone to a great extent for any errors General Porter may have committed . . . It was to a great extent through him, in my judgment, that the services of General George H. Thomas were secured to the side of the Union. General Thomas, then Major Thomas, was stationed at the Carlisle Barracks.

The capital of the nation was menaced by an enemy camping within a few miles of it, and had but a handful of men for its protection. Porter . . . selected Thomas from . . . three Majors and ordered him to report to him at my office in Harrisburg, that being Porter’s headquarters.

When informed of the duty to be performed, Thomas hesitated, then began a conversation between the two officers which continued until morning and made a lasting impression on my mind. Thomas argued against the war taking the ground that the trouble had been brought upon the country by the abolitionists of the North, and that while deploring it as sincerely as any man could, the South had just cause for complaint.

Porter took the position that he, Thomas, as a soldier, had no right to look at the cause of the trouble, but as an officer of the United States army it was his duty to defend his flag whenever it was attacked, whether by foes from without or from within. Porter pleaded as zealously, as eloquently, as I have ever heard any man plead a cause in which his whole heart was engaged, and it was this pleading which caused Thomas to arrive at a decision.

“I do not say that Thomas refused to obey his orders, but I do say that he hesitated and would much have preferred that the duty had devolved upon another. Thomas was a Virginian, and had, as many other good and patriotic men had, great doubts as to the ability of the government to coerce the States back into the Union that had, by their legislatures, formally withdrawn . . . ”

(Did George H. Thomas Hesitate to Draw His sword Against His Native State — Virginia? Notes and Queries, Southern Historical Papers, Volume XII, R.A. Brock, Editor, pp. 568-570)

The United States Constitution provides that States cannot be forced, invaded, or their republican form of government changed; and the Constitution itself cannot be amended unless three-fourths of the States freely ratify the change or changes. The three postwar amendments which tremendously increased federal authority were forced upon subjugated States – ironically by the same federal agent they had granted strictly limited power to in 1787.

Bernhard Thuersam, www.Circa1865.com

Duress and Trophies of the Victor

“Time had indeed shown – a mere decade of it, from 1858 to 1868 – a Civil War and an attempted overturn of the American form of government. The South had been charged, she would “rule or ruin”; but it is shown the North, “taking over the government,” as [South Carolina Senator Hammond] stated, did “rule and ruin” nigh half a great nation.

As the truths of 1861-65 emerge, we see but a barren Pyrrhic victory won on false pretenses, and memorialized on labored perversions and obscurities, a Lincoln of fabulous creation and facultative dimensions, a false god of idolatrous devotees, and “Olympian” that never was!

In his last address Washington had cautioned against “any spirit of innovation upon the principles of the Constitution, however specious the pretexts . . . Facility in changes upon the credit of mere hypothesis and opinion exposes to perpetual change from the endless variety of hypothesis and opinion; and, in any event, should a modification of the Constitutional powers be necessary, it is to be made in the way the Constitution designates . . . but no change by usurpation.”

What but “usurpation” of the rights of three fourths of the States by making such changes were those three postwar amendments? Eleven States had no say whatever, except the raw pretenses of seizure of power, about their own ratifications; and these States were those most intimately and immediately affected. It would seem as if efforts to abolish republican forms of government or to destroy equality (e.g., in the Senate) should not be subject to deliberation.

Three unconstitutional amendments, incorporating the final results of the so-called “Rebellion,” are in summary the treaty between the belligerents – a duress. In them are the trophies of the victors, but no mention of the cause, the real cause, of the conflict – States’ rights. One observer commented that “. . . of the war waged ostensibly to maintain the integrity of the Union, and in denial of the dogma of State sovereignty, the future historian will not fail to note that the three amendments are silent on this subject . . .

What was to be the government and who were to comprise the constituency – hence the sovereignty – in 1866, of eleven American States? Was it proposed to take these endowments away and to install the tyrant’s whim and rule? No wonder chaos reigned in all departments of the federal government in 1865! Nothing was said then about the right of secession; if that right existed, it exists now, so far as any declaration in the organic law is concerned. It has not been renounced, and the supremacy of the “nation” has not been affirmed in the Constitution. Truth crushed to earth will rise again . . .

Determination of such a constitutional question as the permanence of the Union can never be decided by four justices [Texas vs White, 1869] of the Supreme Court, leaving unheard about forty million citizens. By the Constitution, seven men could not abolish the States of the Union, but three-fourths of those States could abolish that court and all its judges. And, along with it, all the Lincolns that ever sat in the White House and all the Sumner’s and Stevens that ever sat in the House or Senate.”

(The Constitutions of Abraham Lincoln and Jefferson Davis, A Historical and Biographical Study in Contrasts, Russell Hoover Quynn, Exposition Press, 1959, pp. 45-49)

The Founders referred to their creation as a republic and built in safeguards against the rise of democracy, which they saw as mob rule. Professor Donald Livingston instructs us that the United States is not a republic, but a federation of republics — and the federation itself, cannot be referred to as a “republic.”

Jefferson’s revolution of 1800 election temporarily ended the Federalist Party’s quest to mold the United States into an aristocratic and centralized nation, though encroachments of federal power upon the States continued through the Supreme Court (“sappers and miners”), centralized banking, special interest protectionism — and finally the creation of the States, the federal agent — waging war upon States that rightly opposed the encroachments. The new Republican Party of Lincoln was an incarnation of Adam’s Federalist Party, and empowered by the protectionist and banking interests of New England.

Bernhard Thuersam, www.Circa1865.com

A Court Party Living Off the Farmers

“Any system of government, from a democracy to an aristocracy to a monarchy, is capable of drowning its people in tyranny. “I see no infallible criterion for defining the nature of government, except its acts,” wrote John Taylor of Caroline in “Construction Construed and Constitutions Vindicated,” (1820). “If the acts of a monarchy, aristocracy and democracy are the same, these forms of government are to a nation essentially the same also. To contend for forms only, is to fight for shadows.”

How then, should we define the nature of a republic? The word itself was batted around by all the Founding Fathers, but its use varied. John Adams, who favored aristocracy and “balanced power,” wrote that the only “rational” definition of republic is “aa government, in which all men, rich and poor, magistrates and subjects, officers and people, masters and servants, the first citizen and the last, are equally subject to the laws.”

Taylor assailed this sort of “republic,” which puts its faith in the “rule of law.” Answering Adams in 1814 (An Inquiry into the Principles and Policy of the Government of the United States), he asked how this was any different from the government from which they had declared independence. What guarantees that the law to which everyone is “equally subject” is just – or good?

Adam’ imagined government would counter [inherent financial injustice] with a “balance of power,” by which each class, emerging “naturally” according to a divine distribution of talent, would find equal representation. But do such classes arise “by nature,” according to “God’s design?” Taylor argues that Adams’ classes are artificial – special interests created by laws and sustained by government. (Government’s creation of a standing army, for example, creates a “soldier class,” a military interest. Central banking, creates a banking interest. Etc.)

And man’s lust for power being what it is, these artificial classes would (did) seek to advance their standing among the others, if not dominate them altogether even; even taking the moral high ground for doing just so. “One tyrant may thank God that he is not another tyrant.”

During the infant days of the United States, the means by which the federal government was creating this phony aristocracy was, according to Taylor, its control of the economy, through central banking and taxation – unjust transfers of wealth from one interest to another.

“Wealth, established by law, violates the principle, which induced the American states to wage war with Britain. It separates the imposer from the payer of taxes. No nation would tax itself to enrich an order or separate interest. When therefore a nation is so taxed, it must proceed from the power of the order itself, which is invariably the imposer and receiver of the tax; whilst the rest of the nation is the payer.”

For Taylor, a true, sustainable republic is not characterized by a “balance of power” among artificial interest groups, but by self-government. “The distinguishing superiorities of our policy, are, the sovereignty of the people; a republican government, or a government producing publick or national good; and a thorough system of responsible representation.”

Who, then, were these sovereign “people,” and what is this “good.” The people are farmers. At the time of the War of Independence, 95 percent of Americans were engaged in farming. The prospect of owning a farm was what made the colonies attractive in the first place.

But this life had been threatened by a distant [British] central government that was cash-strapped and weary from financing its own imperial adventures. The small colonial farmer found it difficult to hold onto his land when the crown began to manipulate the money supply. Slapping taxes on his and stifling free trade only made things worse.

The Federalists’ “consolidated republic” threatened to do just the same. Federalist fiscal policy created new interests, a new Court Party of paper wealth. These sundry interests could not live without the farmers, yet they must live off them.

According to Jeffersonian tradition, of which Taylor was the greatest exemplar, the farmer is capable of self-government. His is the only vocation that is “natural” – that is not a creation of government. He depends upon God to sustain him . . . [and] he takes up his arms to defend hearth and home in the local militia, and the mantle of statesman when called upon – all the while eager, as Taylor was, to get back to his land, to the plow.

This is the true republican ideal [and] . . . its people are defined not by party affiliation or political law but by the mores majorum, the “customs of the fathers.”

(A Share in the Patria, Aaron D. Wolf, Chronicles, May 2009, excerpts, pp. 21-22)

Many in the antebellum South viewed the theories advanced by abolitionists and the new Republican Party as threatening the Union they wished to remain in and forcing their withdrawal. As South Carolina was threatened with coercion in 1832 over nullification, those in the South wondered why the Northern States which nullified federal laws were not threatened with coercion – which well might have impelled those Northern States to secede.

Bernhard Thuersam, www.Circa1865.com

Theories of Conflict and Higher Law

“But whatever the real issue between the sections in the territorial dispute, there was no doubt, in the South at least, of the sectional objectives in defending or in opposing two new theories developed in the North during the decade of the fifties.

These were the theories of the “irrepressible conflict” and of the “higher law.”

Both were considered by the South to be incompatible [with the United States Constitution] . . . both were soundly denounced as a direct infringement of the principle of constitutional guarantees.

The theory of the “irrepressible conflict” was the joint product of Abraham Lincoln’s address before the Republican State Convention in Illinois, delivered on June 16, 1858, and of William Seward’s “Irrepressible Conflict” speech delivered at Rochester, New York, October 25, 1858.

This theory was denounced by every legitimate agency in the South from county assemblies to State conventions. On December 2, 1859, the General Assembly of Tennessee resolved “that we recognize in the recent outbreak at Harper’s Ferry the natural prints of this treasonable, “irrepressible conflict” doctrine put forward by the great head of the Black Republican party and echoed by his subordinates.”

The second of these theories — the theory of the higher law – [was championed by] William Seward of New York.

This theory doubtless sprang from the ranks of the abolitionists in the latter thirties, for as early as June 15, 1841, Representative Kenneth Raynor of North Carolina attacked the position of John Quincy Adams on the slavery question because he “has thrown aside law and Constitution, and has dared to put the issue of this question upon the high and impregnable ground of the Divine law”, a position which Raynor declared “sweeps away everything like human compact and rests the mutual rights of men on what the imagination of fanaticism may picture to itself as a Divine requirement.”

In February 1851, Robert Toombs discovered that a “great question is rising up before us [to] become a “fixed fact” in American politics. It is . . . sometimes called the higher law, in antagonism to our constitutional compact. If the first (i.e, higher law) succeeds, we have no other safety except in secession; if the latter (i.e, the constitutional compact succeeds) “liberty and Union, may be forever one and inseparable.”

Before the end of the following year, the “fixed fact” had found definite expression from the pen of William Hosmer in a volume of some two hundred pages entitled, The Higher Law. Within those pages, the author makes the following contention: “Men have no right to make a constitution which sanctions slavery, and it is the imperative duty of all good men to break it, when made . . . the fact that a law is constitutional amounts to nothing, unless it is also pure . . .”

On February 18, 1861, Fulton Anderson, commissioner from Mississippi to Virginia, warned the Virginia Convention that an “infidel fanaticism, crying out for a higher law than that of the Constitution . . . has been enlisted in this strife”; and in the Alabama Convention of that year L.M. Stone maintained that the “triumph of a Higher Law party, pledged to the destruction of our Constitutional Rights, forced us to dissolve our political connection with [the] hostile States.”

(The South As A Conscious Minority, Jesse T. Carpenter, New York University, 1930, pp 157-160)

Thomas J. Norton notes below in 1951 that Congress has no authority to “lend money or to give it away” – and cites James Madison’s warning of paper barriers being insufficient to stop evil persons in government. Jefferson Davis stated in 1881: “Of what value then are paper constitutions and oaths binding officers to their preservation, if there is not intelligence enough in the people to discern the violations, and virtue enough to resist the violators?”

Bernhard Thuersam, Circa1865.com

Undermining the Constitution

“The Constitution gives power to Congress (1) “to coin money” and (2) “to borrow on the credit of the United States” — but not to lend money, or to give it away, either at home or abroad.

What is expressed in a Constitution is equivalent to a prohibition of what is not expressed. The powers over money mentioned are the only ones that the Constitutional Convention brought in from the world of inherent powers and fixed in the Fundamental Law.

Those specifications reject the theory of unlimited powers exercised by European monarchs in 1787. Not long before that, Louis XIV had kept Europe embroiled in wars by loans or grants of money to belligerent rulers. Did the Constitutional Convention, at least one member of which was born in his reign, intend to give that power to Congress? It did not say so. The power was therefore withheld by the people from their servants.

The United States is now, without authority — under a denial of authority — lending or granting money to Europe, and to the rest of the world. Postwar programs, twenty-two in number, for aiding foreign nations, in addition to the military aid program, have piled on top of the costs [330 billion] of [World] War II $30,757,000,000, according to Senator Byrd of Virginia, speaking in September 1949.

Thus, the limitations of the Constitution become what Madison gave warning of — “paper barriers.”

(Undermining the Constitution: A History of Lawless Government, Thomas James Norton, Devin-Adair Company, 1951, page 22)