Circa1865

North Carolinians were not alone in fearing the consolidationist tendencies under the proposed Constitution, and held out for amendments rather than taking someone’s word. It was made very clear that religious tests and political office did not include Muslims or Hindu’s, nor were pagans desired in the halls of government. North Carolina’s proposed amendment of a two-thirds majority to determine if a State was in rebellion would have perplexed a president 70-some years later.

Bernhard Thuersam, www.circa1865.org

North Carolina Fears a Pagan Congress

“The anti-federalist plan as introduced by [Willie] Jones, which was a refusal to ratify [the Constitution] until certain amendments were added, appears in the records when the committee of the whole reported to the convention. While the discussion of this motion [to ratify] was in progress, Willie Jones stated that Jefferson wished nine States to ratify the Constitution to preserve the union, but he wanted the other four to reject it to make certain that the amendments would be added.

Jones said it would probably take about eighteen months to have the amendments ratified, but he had “rather be eighteen years out of the Union than adopt it in its present form.”  The North Carolina anti-federalists felt that, since their proposed amendments were so similar to those of Virginia, they would have the support of that State in urging their acceptance, and in North Carolina’s favorable reception when it wished to enter the union.

The last clause of the Constitution which occasioned debate in the committee was the one prohibiting religious tests for public offices. The delegate who opened the discussion was Henry Abbott, a Baptist elder from Anson [county] who voted with the federalists . . . [who] said that some persons were afraid that, should the Constitution be put into effect, they would be deprived of the privilege of worshipping God according to their consciences, which would be denying them a benefit they enjoyed under the existing [Articles of Confederation].

He said he wished to know what religion would be established. For his part, he was against any exclusive establishment, but if there were any he preferred the Episcopal. Many thought that the prohibition of religious tests was dangerous and impolitic. They supposed that if there were no religious test required, pagans, deists and Mahometans might obtain office, and that the senators and representatives might be all pagans.

It is well to note the additional amendments desired by the North Carolina anti-federalists, for they relate to the special interests of that State. In order to safeguard independent action, one amendment proposed that Congress should not declare any State to be in rebellion without the consent of at least two-thirds of all the members present in both houses. Another, showing the fear of commercial interests, provided that Congress should authorize no company of merchants with exclusive privileges.

(Ratification of the Federal Constitution in North Carolina, Louise Irby Trenholme, Columbia University Press, 1932, pp. 178-184)

In no way was the North a monolithic unit against the American South during the War, and many the Northern Democratic party criticized Lincoln’s policy’s though at the risk of imprisonment. Though the abolition of slavery was a noble effort, they saw free government as more precious.

Bernhard Thuersam, www.circa1865.org

Expecting Unending Federal Interference

“[“Samuel “Sunset”] . . . Cox concluded once again that the purpose of the war was being perverted; the Union soldiers had been deceived, for “they never went into a crusade for abolition.” He pronounced [The Freedman’s Bureau] bill “sweeping and revolutionary” in its effect since “it begins a policy for this Federal Government of limited and express powers, so latitudinarian that the whole system is changed” into a centralized, unitary government, operating “by edict and bayonet, by sham election and juggling proclamation.” [He said] The way to peace was to “restore the Union through compromise” not by “military governors for rebellious provinces.”

As reports reached Washington that Southerners were freeing their slaves for use in the army, it was clear that the end of slavery would not be a bar to negotiations for a restored Union. So on January 21, 1865, as Cox recorded later, “I fully intended . . . to cast my vote for the amendment.” He had explained his position at length several weeks earlier.

Conceding the power to amend the Constitution to abolish slavery . . . Cox preferred to leave the question “to the States individually.” He had urged a policy of non-intervention by the government in the slave question ever since “I first came to this Congress.” Slavery “is to me the most repugnant of all human institutions,” but the principle of “self-government” by the States over their own affairs “was even more precious than the end of human bondage,” for, if the federal government could intervene in this matter, then federal interference could be expected in all domestic matters.

Most important of all, however, was the Union. If peace with Union could be achieved “by the abolition of slavery, I would vote for it.” But if abolition “is an obstacle in the way of restoring the Union,” as Cox felt it was at the moment . . . then he would vote against it.”

(“Sunset” Cox, Irrepressible Democrat, David Lindsey, Wayne State University Press, 1959, pp. 91-94)

The last of the conservative news magazines was the US News & World Report under the leadership of Editor David Lawrence. In 1962 he wrote about the illegality of the presidential executive order which circumvented the United States Constitution, the people, Congress, and the rule of law.

Bernhard Thuersam, www.circa1865.org

Executive Orders a Form of Extremism

“We hear a good deal nowadays about “extremists” – those who brand as Communists other persons who are not Communists. Name-calling, while deplorable, doesn’t do as much harm to the American people as a whole as do the “extremists” in public office who would disregard the Constitution.

For there is a trend today toward circumvention of the Constitution. Scarcely a month goes by that some new legislative measure or executive order isn’t proposed which seeks to “get around” the Constitution. The argument recently espoused in all seriousness as an alibi by some people inside and outside Government is that amending the Constitution is a laborious and slow process. The point is made that “times have changed” and that some of the doctrines of past decades in the field of law have become obsolete.

Oddly enough, that‘s exactly the excuse Nikita Krushchev gives for abrogating the allied agreements made in 1945 to insure unrestricted access to Berlin. He says these agreements are outmoded. Is it right for one party to an agreement to declare arbitrarily that he will no longer abide by its terms because he decides it is obsolete?

The people of the 13 original States, by a compact with each other, gave up certain rights and delegated them to a central government. All powers not enumerated in the Constitution as having been delegated to the Federal Government were specifically “reserved to the States respectively, or to the people.” This is the language of the Tenth Amendment. Why is this agreement so persistently violated?

If the people at any time wish to change the Constitution, it can be amended by a two-thirds vote of Congress followed by acts of ratification by three-fourths of the States. But we hear today that this is “too cumbersome” a method and that “it takes too much time.” Yet some amendments have gone through from congressional action to State ratification in less than a year. The truth is that where there is substantial opposition to an amendment, it naturally isn’t approved.

Unfortunately, our record as a nation is not clean. The Fourteenth Amendment was not legally inserted in the Constitution. The same Southern States which were considered eligible members of the Union when – after the Civil War was over – they ratified the Thirteenth Amendment abolishing slavery were then punished by Congress for refusing to ratify the Fourteenth Amendment. “Ratification” was accomplished by legislative coercion of the States by Congress and at the point of a bayonet by armed forces stationed in the State legislatures.

Yet this same Fourteenth Amendment is the basis of most of the executive orders on “civil rights” today. The Supreme Court has never consented to pass upon the validity of the method used to “ratify” the Fourteenth Amendment, though the Court has accepted cases challenging the validity of other amendments.

Recently a new trend toward usurpation of power has arisen. It seeks by executive order, or by the passing of new laws, to thwart or ignore the plainly written provisions of the Constitution. President Kennedy sent a bill to Congress a few weeks ago proposing a far-reaching change in the handling of tariffs. The Executive would fix the duties and commodity quotas – a power granted by the Constitution only to Congress.

The bill, now before the House Ways and Means Committee, provides, moreover, that presidential determinations “shall be final and conclusive and shall not be subject to review by any court.” Why should the people be deprived of judicial review when they are the victims of illegality in the application of trade laws?

Also the Kennedy Administration has just signed treaties with 24 countries on trade relations, but does not intend to submit these agreements to the Senate for ratification by a two-thirds vote. Executive orders have been issued, moreover, in “civil rights” matters, on many of which Congress itself has refused to pass laws. Thus, by executive order, purchase contracts for goods and services can be withheld by the Government from any business which refuses to accept the Government’s dictation as to the number of employees of a particular color that the contractor or subcontractor may hire. It certainly is a form of “extremism” to substitute executive orders for the laws of Congress.

Extremism is bred by extremism. We would have less trouble with the malcontents in our midst if the spirit and letter of the Constitution were observed.

If the method of amending the document is too cumbersome, let the people by the constitutional method change it. But let’s face the fact that new “extremists” have arisen who believe that the executive order can circumvent the Constitution if the stated objective merely has “popular appeal.” This is government by emotion – by extremism. It is not a government by a written Constitution.”

(US News & World Report, Editorial, David Lawrence, April 2, 1962, page 108)

For writing promissory notes and obligations of payment in true money of value, is the only proper use of paper for monetary transactions. The note is then worth the sum it is given for under the law. If the person writing the note is worth nothing, then the promise is worthless. The true value then is not the promissory note, but the man behind it. When persons in government begin printing money and establishing claims to its value, the entire system of value and worth is overturned and apparitions replace reality.

Bernhard Thuersam, www.circa1865.org

The Evils of Paper Money

“The currency provisions of the federal constitution were intended to “shut and bar the door” against the evils of a legal-tender paper money issued by State or national governments. For more than two generations it succeeded in accomplishing that end. Contemporaneous with the establishment of the new government, banks were introduced into the United States and spread everywhere with astonishing rapidity. As a result the American people continued as in former times to use for the most part a paper currency, consisting of the notes of these banks. They were not legal tender, as the old bills of credit had been, and could not be made so; and no one supposed that they could give rise to the evils of depreciated paper currency.

The framers of the Constitution of the United States were deeply impressed with the still fresh recollection of the baneful effects of a paper money currency on the property and moral feeling of the community. It was accordingly provided by our National Charter that no State should coin money, emit bills of credit, make anything but gold and silver coin a tender, in payment of debts, or pass any law impairing the obligation of contracts; and the power to coin money and to regulate the value thereof, and of foreign coin, was, by the same instrument, vested exclusively in Congress.

As this body has no authority to make anything whatever a tender in payment of private debts, it necessarily follows that nothing but gold and silver can be made a legal tender for that purpose, and that Congress cannot authorize the payment in any species of paper currency of any other debts but those due the United States, or such debts of the United States as may, by special contract, be made payable in such paper . . .

The provisions of the Constitution were universally considered as affording complete security against the danger of paper money. The introduction of the banking system met with a strenuous opposition on various grounds, but it was not apprehended that banknotes, convertible at will into specie, and which no person could be legally compelled to take in payment, would degenerate into pure paper money, no longer paid at sight in specie.

Still less it was expected; and it was the catastrophe of the year 1814 which first disclosed not only the insecurity of the American banking system, as then existing, but also that when a paper currency, driving away and superseding the use of gold and silver, has insinuated itself through every channel of circulation and become the only medium of exchange, every individual finds himself, in fact, compelled to receive such currency, even when depreciated more than twenty per cent, in the same manner as if it had been made a legal tender.”

( The Economic History of the United States, 1765-1860, Guy Stevens Callender, Sentry Press, 1965, pp. 564-566)

The first disputed presidential election occurred in 1796 with John Adams elected only “by the whim of two Southern electors” — one from Virginia and one in North Carolina – and both voted for Jefferson as Vice President. This electoral result and victory for the monarchical Adams spurred Jefferson and Madison to formulate the Kentucky and Virginia Resolutions, whose spirit was that State governments were the foundation of the American political system, and their power unlimited except for strictly delegated and enumerated functions.

Bernhard Thuersam, www.circa1865.org

The Old and New Republican Party

“The Democratic-Republican Party . . . was the political party whose theory was aimed at the increase of direct popular control over the Government, the widening of the right of suffrage, the limitation of the powers of the Federal Government, and the conservation of the powers reserved to the State governments by the Constitution. It is therefore a strict construction party and has always operated as a check upon the nationalization of the United States.

It at first (1792-3) took the name of the Republican party, which more properly belongs to its present possessors, and was generally known by that name until about 1828-30. Upon its absorption of the French or Democratic faction, in 1793-6, it took the official title of the Democratic-Republican party.

About 1828-30 its nationalizing portion having broken off and taken the name of “National Republican,” the particularist residue assumed the name of “Democrats,” which had been accepted since about 1810 as equivalent to “Republicans,” and by which the have since been known. Some little confusion therefore, has always been occasioned by the similarity in name between the strict construction Republican party of 1793 and the broad construction Republican party of 1856.

[During the formative period, 1789-93 period, the forces] which have always tended to the complete nationalization of the American Union were in operation at the adoption of the Constitution, [and their] influence was as yet by no means general. The mass of the people was thoroughly particularist, interested mainly in the fortunes of their State governments, and disposed to look at the new Federal Government as a creature of convenience only, to be accepted under protest until the exercise of its functions should prove burdensome or unpleasant.

The planters of the South, and particularly of Virginia, had generally supported the change in government [from the Articles of Confederation] and the early measures of the Federal party, induced partly by the influence of Madison and partly by the compromises by which the Constitution had been made acceptable to them.

When Hamilton, early in 1790, finally, and almost from sheer necessity, fell back upon commercial interest as the stock upon which to graft his nationalizing measures, he necessarily alienated the whole South, which was not only particularist but exclusively agricultural, except in a few isolated spots on the seaboard. The difference between the two sections was as yet only in degree, not in kind.

Both were mainly agricultural; both were particularist; neither possessed manufactures; but the South, which had far less banking and commerce than the North, and therefore in Jefferson’s words, “owed the debt while the North owned it,” first felt repulsion to the Hamiltonian policy.

The opposition to his plan for settling the public debt was mainly to its commercial aspect; the opposition to his project of a national bank in the following year was of a distinct party nature, and was based upon that strict construction of the Constitution which was always afterward to be the party’s established theory.

In 1791-2, therefore, we may consider the Anti-Federal party, which had so warmly opposed the adoption of the Constitution, as rehabilitated into a party, as yet without a name, which was to maintain the binding force of the exact and literal language of the Constitution, and to oppose any enlargement of the Federal Government’s powers by interpretation.

The first authoritative claim of the party name occurs in Jefferson’s letter of May 13, 1792, to Washington, in which he says:

“The Republican party, who wish to preserve the government in its present form, are fewer in number [than the monarchical Federalists]. They are fewer even when joined by the two, three or half-dozen Anti-Federalists, who, though they dare not avow it, are still opposed to any general government; but being less so to a republican to a monarchical one, they naturally join those whom they think pursuing the lesser evil.”

Before the close of the year 1792 we must regard the Republican party as fairly formed. Its general basis was a dislike to the control exercised by any government not directly affected by the vote of the citizen on whom the laws operated; a disposition to regard the Federal Government . . . as possibly a second avatar of royalty; and an opposition to the Federalist, or Hamiltonian, measures of a national bank, a national excise [tax], a protective tariff, a funding system for the debt, and to all measures in general tending to benefit the commercial or creditor classes.”

(American Political History, 1763-1876, Alexander Johnston, Volume I, G.P. Putnam’s Sons, 1905, pp. 208-212)

Marylander Reverdy Johnson defended Mary Surratt in the Lincoln assassination conspiracy trial, argued that his client and others charged were civilians, and that the military commission Judge Advocate John A. Bingham convened had no jurisdiction – but to no avail. Major Bingham was a Pennsylvanian and Radical Republican appointed by Lincoln. In contrast to Bingham, Alexander H. Stephens and Jefferson Davis were the ablest constitutional scholars in the country.

Bernhard Thuersam, www.circa1865.org

The Life and Soul of the United States Government

“Read Judge Advocate Bingham’s argument before the Military Commission in Washington in reply to Hon. Reverdy Johnson. It is rhetorical sophistry, specious and plausible to the careless and uninformed reader; but it is utterly fallacious. It affects me in nothing so much as in the sadness it produces when I view it as but an additional evidence that Power, in its incipient and dangerous strides in trampling on the liberties of a country, is never wanting in able and brilliant advocates and defenders.

[Bingham’s] main ground, [is] that the Constitution . . . is intended and made for peace only and not for war, is fundamentally wrong. The Constitution was made for war as well as peace. To the various questions put by the Judge Advocate: Whether in war, men are not slain, prisoners captured, property taken, all without due process of law; the answer is, that they are not; no more than a man who, in peace, puts himself in defiance of the law officers, and is shot down by the sheriff or his posse: that is due process of law in such case. So in war.

In the cases of rebellion and insurrection, the only military forces known to the Constitution are such as are called out in the nature and character of the posse comitatus. For their government, when so called out, laws are made, as well as for the government of such permanent force as may be kept on hand. What a soldier rightfully does in taking life in battle he does according to law prescribed, and orders given in accordance with that law.

No soldiers, even in war, can be rightfully quartered on any man’s premises except in accordance with law previously described. This is an express provision of the Constitution. The idea that the Constitutional guarantees are all suspended in war and that during war martial law takes the place of the Constitution is monstrous.

The Judge Advocate’s remark about the natural principles of self-defence, and that the nation, as a man, may resort to any means to save its life, is rhetoric and not argument; its sentiment is ruinous to liberty. The life and soul of the United States Government is the Constitution and the principles with all the rights therein guaranteed. Whoever strikes at them, or at one of the least of them, strikes a deadly blow at the life of the Republic.

Nothing can be more absurd than that the life of a man can be preserved by an extinction or suspension of all the vital functions of his organism; and yet this is no more absurd than is the argument of those who speak of warding off a blow at the life of the nation, by a suspension or violation of the guarantees of the Constitution.”

(Recollections of Alexander H. Stephens, His Diary, Myrta Lockett Avary, LSU Press, 1998 (Original 1910), pp. 291-293)

The following was a September 27, 1957 editorial by US News Report editor David Lawrence.  An activist Supreme Court had just used questionable sociological reasoning, not law, to call for the desegregation of schools in the United States.  Lawrence reviewed the alleged constitutional basis for the Court’s decision, and the illegality of that basis.

Bernhard Thuersam, www.circa1865.org

“There is No Fourteenth Amendment” 

“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:

Outside the South, six States—New Jersey, Ohio, Kentucky, California, Delaware and Maryland—failed to ratify the proposed amendment.

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.

A total of 16 legislatures out of 37 failed legally to ratify the “Fourteenth Amendment.”

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.

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.

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.”

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.

President Andrew Johnson publicly denounced this law as unconstitutional. But it was passed over his veto.

Secretary of State 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.

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.”

What do the historians say about all this? The Encyclopedia Americana states:

“Reconstruction added humiliation to suffering . . . Eight years of crime, fraud and corruption followed and it was State legislatures composed of Negroes, carpetbaggers and scalawags who obeyed the orders of generals and ratified the amendment.”

W.E. Woodward, in his famous work “A New American History” published in 1936 says:

“To get a clear idea of the succession of events let us review [President Andrew] Johnson’s actions in respect to the ex-Confederate States.

In May 1865, he issued a Proclamation of Amnesty to former rebels. Then he established provisional governments in all the Southern States. They were instructed to call Constitutional Conventions. They did. New State governments were elected.

White men only had the suffrage (the Fifteenth Amendment establishing equal voting rights had not yet been passed). Senators and Representatives were chosen but when they appeared at the opening of Congress they were refused admission. The States governments however continued to function during 1866.

“Now we are in 1867. In the early days of that year Thaddeus Stevens brought in, as Chairman of the House Reconstruction Committee, a bill that proposed to sweep all the Southern State governments into the wastebasket. The South was to be put under military rule.

“The bill passed. It was vetoed by Johnson and passed again over his veto. In the Senate it was amended in such fashion that any State could escape from military rule by ratifying the Fourteenth Amendment and admitting black as well as white men to the polls.”

In challenging its constitutionality, President Johnson said in his veto message:

“I submit to Congress whether this measure is not in its whole character, scope and object without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive of those great principles of liberty and humanity for which our ancestors, on both sides of the Atlantic, have shed so much blood and expended so much treasure.”

Many historians have applauded Johnson’s words. Samuel Eliot Morison and Henry Steele Commager, known today as “liberals”, wrote in their book “The Growth of the American Republic”:

“Johnson returned the bill with a scorching message arguing the unconstitutionality of the whole thing and most impartial students have agreed with his reasoning.”

James Truslow Adams, another noted historian writes in his “History of the United States”: “The Supreme Court had decided three months earlier in the Milligan case…that military courts were unconstitutional except under such war conditions as might make the operation of civil courts impossible, but the president pointed out in vain that practically the whole of the new legislation was unconstitutional….There was even talk in Congress of impeaching the Supreme Court for its decisions! The legislature had run amok and was threatening both the Executive and the Judiciary.”

Actually, President Johnson was impeached but the move failed by one vote in the Senate.

The Supreme Court in case after case, refused to pass on the illegal activities involved in the “ratification”. It said simply that they were acts of the “political departments of the government”. This of course was a convenient device of avoidance. The Court has adhered to that position ever since Reconstruction days.

Andrew C. McLaughlin, whose “Constitutional History of the United States” is a standard work, writes: “Can a State which is not a State and not recognized as such by Congress, perform the supreme duty of ratifying an amendment to the fundamental law? Or does a State — by congressional thinking — cease to be a State for some purposes but not for others?

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.”

Former Vice President and later Kentucky Senator John C. Breckinridge tried vainly to stop the Republican party’s war upon the South in mid-1861. Returning home after the mid-year legislative session, he witnessed Federal officers assembling and training volunteers at Lexington, a forced political alignment with Lincoln’s government, and arrest by Northern military officers.

Bernhard Thuersam, www.circa1865.org

A Doctrine Utterly Subversive of the Constitution

“[In January 1860, John C. Breckinridge] . . . still had more than a year to serve as Vice President of the United States. Within the month past the General Assembly of Kentucky by an overwhelming majority had elected him to the Senate of the United States for the six years beginning March 4, 1861.

Neutrality caught the fancy of most Kentuckians, though the Southern Rights element was at first reluctant to accept it. In succession, however, the House of Representatives on May 16 (1861), the governor on May 20, and finally the Senate [on May 24] . . . assented to that policy.

For himself, he took the position that he was making a record of protest against the unconstitutional measures with which the majority party was fighting an unconstitutional war. Certain it is that had the Republicans accepted his criticisms as valid they would have been forced to abandon the conflict.

During the [legislative] session he made four principal speeches. On July 16 he spoke vigorously against the joint resolution “to approve and confirm” various “acts, extraordinary proclamations and orders” performed or issued by the President since March 4 “for suppressing insurrection and rebellion.” Breckinridge urged that if Congress had the “power to cure a breach of the Constitution or to indemnify the President against violations of the Constitution and the laws,” it might in effect “alter the Constitution in a manner not provided by that instrument.”

He attacked the specific acts of the President [as unconstitutional such as] the establishment of a blockade of Southern coasts, the authorization of the suspension of the writ of habeas corpus by various military commanders, the waging of war and raising armies without any act of Congress, arbitrary interference with freedom of the press, and the arbitrary imprisonment of private citizens.

Looking for a justification of the President’s acts, Breckinridge assumed that it would be found in the necessities of the case. He denied indeed that there was any genuine necessity for the acts of which he complained, but, more fundamentally, he argued that the “doctrine [of necessity] is utterly subversive of the Constitution . . . [and] of all written limitations of government. Thus he concluded that only the powers actually granted in the Constitution may be exercised by the government, whatever the emergency.

Expanding an argument which he had used at Frankfort on April 2, he predicted that unless current tendencies were checked, the result would be “to change radically our frame and character of Government” by establishing a centralized regime without any effective limitation upon its powers. [He argued] that he and many other conservative men counted “the Union not an end, but a means – a means by which, under the terms of the Constitution, liberty may be maintained, property and personal rights protected, and general happiness secured.”

When asked, near the end of the session, what he would do [with] a hostile army encamped but a few miles from the national capital, Breckinridge declared flatly that he would abandon the war; that he did “not hold that constitutional liberty . . . is not bound up in this fratricidal, devastating and horrible contest.

Upon the contrary, I fear it will find a grave in it . . . Sir, I would prefer to see these States all reunited upon true constitutional principles to any other object that could be offered me in life; . . . But I infinitely prefer to see a peaceful separation of these States, than to see endless, aimless, devastating war, at the end of which I see the grave of public liberty and of person freedom.”

(Breckinridge in the Crisis of 1860-1861, Frank H. Heck, Journal of Southern History, Volume XXII, Number 3, August, 1955, pp. 338-341)

By 1824, Francis Scott Key, writer of the Star-Spangled Banner, sensed the divisions which were undermining the foundation of American government. He surely never imagined that his own grandson, Francis Key Howard, would be imprisoned by Lincoln’s Republicans at the same place in where he penned the historic anthem.

Bernhard Thuersam, www.circa1865.org

Francis Scott Key and the Endangered Republic

“Key hastily surveyed the political situation in the Nation. Since the election of John Quincy Adams in 1824, party spirit had been blazing with intensity. President Adams named Henry Clay for Secretary of State; and immediately there arose the cry of a corrupt bargain between Adams and Clay. Key’s Virginia friend, John Randolph of Roanoke, added fuel to the flame.

In the Senate this sepulchral figure denounced the friendship of the Puritan President and “Harry of the West” as a dangerous conspiracy. “I was defeated,” shrieked Senator Randolph, “horse, foot and dragoon—cut up and clean broke down by the coalition of Blifil and Black George—by the combination, unheard of till then, of the Puritan with the blackleg.”

All during the year 1826 the opposing political parties were strengthening their organizations. The followers of Adams and Clay united under the banner of the National Republicans. They stood for a protective tariff and internal improvements by the National Government.

It was at this time that many of the Federalists in Maryland joined the anti-Administration forces. Before long Roger Brooke Taney, who had been a Federalist for a quarter of a century, was to become an ardent follower of Andrew Jackson and one of the leading Democrats in Maryland.

The sensitive soul of Francis Scott Key was disturbed. He could hear the call to arms; he could hear the tramp of the armies of the North and the South; he could hear the reverberations of the guns that were to shake the foundations of the Nation. He spoke now as a prophet:

  “We have lived to witness the operation of the political institutions founded by our fathers. Maryland is a member of the American confederacy, united with the other independent States in one general government. It is . . . her concern that the General Government be wisely administered, and with just regard for her peculiar interests. Her duty to the Union requires this; her own preservation demands it. There is a great common interest among these States — a bond of Union, strong enough, we all hope to endure the occasional conflicts of subordinate local interests.

But there are and ever will be these interests, and they will necessarily produce collision and competition. It is essential to her [Maryland], and to every member of the Union, that the agitations excited by these collisions should be kept from endangering the foundations upon which the fabric of our free institutions has been reared . . . It is no reproach to the wisdom of those who framed our Constitution that they have left it exposed to danger from the separate interests and powers of the States. These local interests are powerful excitements to the States to prepare and enrich their public men with the highest possible endowments . . .

If Providence shall preserve us from these dangers, and will give perpetuity to our institutions, Maryland will continue to see an increasing necessity . . . for calling forth and cultivating all her resources. And if this hope fails us, if the Union is dissolved, in the distractions and dangers that will follow, she will . . . still more require the highest aid that the wisdom of her sons can afford, to guide her through that night of darkness.”

As an illustration of the rivalry between the States, Key alluded to the foremost issue — the question of internal improvements. [He] refrained from giving his own opinion on the political aspects of internal improvements He evaded the issue by saying that the most needed improvement was the improvement of the intellect.

“The people,” he explained, “were to form a General Government of limited and defined powers, intended to secure the common interest — the States to be independent republics, in all other respects having exclusive power in whatsoever concerned their separate interests.” Thereupon Key urged that the . . . States be protected from Federal usurpation . . . “As the tendency of power is ever encroaching, the General Government may become a vast consolidated dominion, with immense resources and unlimited patronage, dangerous to the power of the States and the rights of the people.”

(Francis Scott Key, His Life and Times, Edward S. Delaplaine, Biography Press, 1937, pp. 266-306

Zebulon B. Vance of North Carolina, former colonel, wartime governor and later United States Senator, explained to his Senate colleagues in 1879 by what manner the Southern States became solidly Democratic after the war.  Vance,  a prewar Unionist, was astonished at the temper of the Republican party victors and that they would subvert all law and civil governments in the South for the purpose of party supremacy.

Bernhard Thuersam, www.circa1865.org

Reasons for the Solid South

“Mr. President, who made the South solid?

The answer is as plain and unmistakable as it is possible to make anything to the human intellect: the Republican party is responsible for this thing. At the beginning of the late war almost the entire Whig party of the South, with a large and influential portion of the Democratic, were in favor of the Union and deprecated with their whole souls the attempt at its destruction, but through love of their native States and sympathy with their kindred and neighbors they were drawn into the support of the war.

Their wisdom in opposing it was justified by the ruinous results; their patriotism and courage were highly appreciated, and when peace came this class were in high favor at the South, while the secessionists as the original advocates of a disastrous policy were down in public estimation.

If you gentlemen of the North had then come forward with liberal terms and taken these men by the hand, you could have established a party in the South that would have perpetuated your power in this Government for a generation, provided you had listened to the views of those men, and respected their policy on questions touching their section.

But you pursued the very opposite course, a course which compelled almost every decent, intelligent man of Anglo-Saxon prejudices and traditions to take a firm and determined stand against you; a course which consolidated all shades of political opinion into one resolute mass to defend what they conceived to be their ancient forms of government, laws, liberties and civilization itself. By confiscation and the destruction of war, you had already stripped us of property to the extent of at least $3,000,000,000 and left our land desolate, rent and torn, our homes consumed with fire, and our pleasant places a wasted wilderness.

Peace then came – no, not peace, but the end of war came – no, not the end of war, but the end of legitimate, civilized war, and for three years you dallied with us. One day we were treated as though we were in the Union, and as though we had legitimate State governments in operation; another day we were treated as though we were out of the Union, and our State governments were rebellious usurpations. It was a regular game of “Now you see it and now you don’t.” We were in the Union for all purposes of oppression; we were out of it for all purposes of protection.

Finally, seeing that we still remained Democratic, the Union was dissolved by act of Congress and we were formally legislated outside in order that you might bring us into the Union again in such a way as to guarantee us a Republican form of government – that is, that we should vote the Republican ticket; and you cited Article IV, Section 4, of the Constitution as your authority to do this.

You deposed our State governments and ejected from office every official, from Governor to township constable, and remitted us to a State of chaos in which the only light of human authority for the regulation of human affairs and the control of human passions was that which gleamed from the polished point of the soldier’s bayonet.

You disenfranchised at least ten per cent of our citizens, embracing the wisest, best and most experienced. You enfranchised our slaves, the lowest and most ignorant; and you placed over them as leaders a class of men who have attained the highest positions of infamy known to modern ages.

In order to preserve the semblance of consent, conventions were called to form new [State] constitutions, the delegates to which were chosen by this new and unheard of constituency, The military counted the votes, often at the headquarters in distant States, the general in command determining the election and qualifications of the delegates.

Perhaps the annals of the [Anglo-Saxon] race from which we spring, with all its various branches spread throughout the world, cannot furnish such a parody upon the principles of free government based upon the consent of the governed.

[So constituted], the new governments went to work, and in the short space of four years they plundered those eleven Southern States to the extent of $262,000,000; that is to say, they took all that we had that was amenable to larceny, and they would have taken more, doubtless, but for the same reason that the weather could not get any colder in Minnesota, as described by a returned emigrant from that State.

And now recalling these facts and a hundred more which I cannot now name, can any candid man wonder that we became solid? Can he wonder that old Whigs and Democrats, Union men and secessionists, should unite in a desperate effort to throw off the dominion of a party which had inflicted these things upon them? And your military interference, your abuse, and your denunciations continue unto this day.

The Negro alone is your friend and very few whites . . . [though] One by one the Northern adventurers who led them have packed their carpet-bags and silently stolen back to the slums of Northern society whence they originated, and the lonely Republican makes his solitary lair in some custom-house or post-office or revenue headquarters. The broad, free, bright world outside of these retreats in all the South is Democratic, thanks to you, the Republican party of the North.”

(Life of Zebulon B. Vance, Clement Dowd, Observer Printing and Publishing House, 1897, pp. 226-229)