Posted on 06/12/2003 5:58:28 AM PDT by Aurelius
Over the years I've heard many rail at the South for seceding from the 'glorious Union.' They claim that Jeff Davis and all Southerners were really nothing but traitors - and some of these people were born and raised in the South and should know better, but don't, thanks to their government school 'education.'
Frank Conner, in his excellent book The South Under Siege 1830-2000 deals in some detail with the question of Davis' alleged 'treason.' In referring to the Northern leaders he noted: "They believed the most logical means of justifying the North's war would be to have the federal government convict Davis of treason against the United States. Such a conviction must presuppose that the Confederate States could not have seceded from the Union; so convicting Davis would validate the war and make it morally legitimate."
Although this was the way the federal government planned to proceed, that prolific South-hater, Thaddeus Stevens, couldn't keep his mouth shut and he let the cat out of the bag. Stevens said: "The Southerners should be treated as a conquered alien enemy...This can be done without violence to the established principles only on the theory that the Southern states were severed from the Union and were an independent government de facto and an alien enemy to be dealt with according to the laws of war...No reform can be effected in the Southern States if they have never left the Union..." And, although he did not plainly say it, what Stevens really desired was that the Christian culture of the Old South be 'reformed' into something more compatible with his beliefs. No matter how you look at it, the feds tried to have it both ways - they claimed the South was in rebellion and had never been out of the Union, but then it had to do certain things to 'get back' into the Union it had never been out of. Strange, is it not, that the 'history' books never seem to pick up on this?
At any rate, the Northern government prepared to try President Davis for treason while it had him in prison. Mr. Conner has observed that: "The War Department presented its evidence for a treason trial against Davis to a famed jurist, Francis Lieber, for his analysis. Lieber pronounced 'Davis will not be found guilty and we shall stand there completely beaten'." According to Mr. Conner, U.S. Attorney General James Speed appointed a renowned attorney, John J. Clifford, as his chief prosecutor. Clifford, after studying the government's evidence against Davis, withdrew from the case. He said he had 'grave doubts' about it. Not to be undone, Speed then appointed Richard Henry Dana, a prominent maritime lawyer, to the case. Mr. Dana also withdrew. He said basically, that as long as the North had won a military victory over the South, they should just be satisfied with that. In other words - "you won the war, boys, so don't push your luck beyond that."
Mr. Conner tells us that: "In 1866 President Johnson appointed a new U.S. attorney general, Henry Stanburg. But Stanburg wouldn't touch the case either. Thus had spoken the North's best and brightest jurists re the legitimacy of the War of Northern Aggression - even though the Jefferson Davis case offered blinding fame to the prosecutor who could prove that the South had seceded unconstitutionally." None of these bright lights from the North would touch this case with a ten-foot pole. It's not that they were dumb, in fact the reverse is true. These men knew a dead horse when they saw it and were not about to climb aboard and attempt to ride it across the treacherous stream of illegal secession. They knew better. In fact, a Northerner from New York, Charles O'Connor, became the legal counsel for Jeff Davis - without charge. That, plus the celebrity jurists from the North that refused to touch the case, told the federal government that they really had no case against Davis or secession and that Davis was merely being held as a political prisoner.
Author Richard Street, writing in The Civil War back in the 1950s said exactly the same thing. Referring to Jeff Davis, Street wrote: "He was imprisoned after the war, was never brought to trial. The North didn't dare give him a trial, knowing that a trial would establish that secession was not unconstitutional, that there had been no 'rebellion' and that the South had got a raw deal." At one point the government intimated that it would be willing to offer Davis a pardon, should he ask for one. Davis refused that and he demanded that the government either give him a pardon or give him a trial, or admit that they had dealt unjustly with him. Mr. Street said: "He died 'unpardoned' by a government that was leery of giving him a public hearing." If Davis was as guilty as they claimed, why no trial???
Had the federal government had any possible chance to convict Davis and therefore declare secession unconstitutional they would have done so in a New York minute. The fact that they diddled around and finally released him without benefit of the trial he wanted proves that the North had no real case against secession. Over 600,000 boys, both North and South, were killed or maimed so the North could fight a war of conquest over something that the South did that was neither illegal or wrong. Yet they claim the moral high ground because the 'freed' the slaves, a farce at best.
Beat me to it, I should've read ahead before posting.
"The war in which we are engaged is a just and necessary war. It must be prosecuted with the whole force of this government till the military power of the South is broken, and they submit themselves to their duty to obey, and our right to have obeyed, the Constitution of the United States as "the Supreme law of the land." But with what sense of right can we subdue them by arms to obey the Constitution as the supreme law of their part of the land, if we have ceased to obey it, or failed to preserve it, as the supreme law of our part of the land.
...
I do not yet perceive how it is that my neighbors and myself, residing remote from armies and their operations, and where all the laws of the land may be enforced by constitutional means, should be subjected to the possibility of military arrest and imprisonment, and trial before a military commission, and punishment at its discretion for offenses unknown to the law; a possibility to be converted into a fact at the mere will of the President, or of some subordinate officer, clothed by him with this power. But I do perceive that this executive power is asserted.
[italics in original]
Executive Power, Benjamin Robbins Curtis, 1862, pp. 14-15
I'm glad someone else caught that. For a minute there, I thought I was going insane seeing one of the Lincolnians confess to prosecution of the war for political purpose.
Instant recognition was not a problem. Only a criminal would fight for years to get his actions indemnified.
Thoughts about the recent SCOTUS and medicare disasters incited me to re-read and consider his argument again, so I just "rediscovered" it a few days ago. I also have to agree with you. Most Americans, including a number of otherwise conservative individuals, are dupes. Most of the rest of them are knaves, and this includes a majority of the active constituency of the Democrat party - the welfare bums, affirmative action recipients, and other handout grabbers who prostitute their votes in exchange for payment from the state.
I am of the firm belief that any right minded and intelligent conservative would and should fit in the third category or some variation of it. They recognize the evil of government and subscribe to a desire to ameliorate those evils through pragmatic action within the system. Reagan, at least in his beliefs, shared this view. So did many conservatives in his administration all the way through the Gingrich revolution. Now I am not so sure. There seems to be a growing crowd of so-called conservatives that thinks that government is okay as long as we are the ones who control it. They aren't necessarily those who go by the overused classifying term of "neoconservative," though that crowd does have a disproportionately large number in their ranks. They forget that power tends to corrupt even the best of souls, and, like Gondor with Sauron's ring, assume that their control of it means they can use it for good. Accordingly these persons, who were at one time in the third category, become either dupes, who subscribe to the delusion that government is a good thing in the right hands, and knaves, who upon discovering the allure of power after it reaches their hands, cannot let go.
From Milligan:
It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will...If this position is sound to the extent claimed, then when war exists, foreign or domestic ... the commander of one of them can ... substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules.
The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power."
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.
No, I posted what God says about slavery in the Bible. Joseph was a slave, servant of Potiphar and the Pharoh, was elevated to the 2nd highest position in the land, and witnessed to millions from his status as slave. It's an interesting book. You should read it sometime.
Be sure to post the chapter and verse condemning slavery. It's not in these verses:
1 Timothy 6 (KJV)
1 Let as many servants as are under the yoke count their own masters worthy of all honour, that the name of God and his doctrine be not blasphemed.
2 And they that have believing masters, let them not despise them, because they are brethren; but rather do them service, because they are faithful and beloved, partakers of the benefit. These things teach and exhort.
3 If any man teach otherwise, and consent not to wholesome words, even the words of our Lord Jesus Christ, and to the doctrine which is according to godliness;
4 He is proud, knowing nothing, but doting about questions and strifes of words, whereof cometh envy, strife, railings, evil surmisings ...
The application of the principles in Milligan were reviewed in the Hirabayashi case and the Korematsu case. Indeed, at that time, the F. D. Roosevelt adminstration tried to expand its level of war powers well beyond the modest steps of Lincoln. Fortunately, in Ex parte Endo the excesses were checked.
Chief Justice Charles Evans Hughes stated, "The war power of the national government is the power to wage war successfully and it is not for any court to sit in review of the wisdom of their actions [the Executive or Congress], or to substitute its actions for theirs."
"otherwise" means "under different circumstances." This is not an admission by Lincoln that he took unconstitutional measures. He is providing a rationale for his actions during critical and unpredictable circumstances. He is, in essense, explaining why he assumed certain war powers.
"Even those of you who did not major in history probably know that Abraham Lincoln was elected President in November of 1860, and was inaugurated as President on March 4, 1861. Between the time of his election and his inauguration, the seven states of the deep south -- South Carolina, Georgia, Florida, Alabama, Mississippi and Texas -- had seceded from the Union and elected Jefferson Davis as their President. For the first six weeks of Lincoln's administration, the cabinet debated what to do about the Union garrison at Fort Sumter, on an island in the harbor of Charleston, South Carolina. In mid-April, the Confederate shore batteries opened up on the fort, and the garrison surrendered the next day. Lincoln called for 75,000 volunteers to put down the rebellion, and the four states of the upper south -- Virginia, North Carolina, Tennessee, and Arkansas -- seceded and joined the original seven states of the Confederacy. The Civil War had begun. Washington, D. C. went from being an interior capital to a capital on the very frontier of the Union, exposed to possible raids and even investment and capture by the Confederate forces.
"Lincoln, fully aware of this danger, was most anxious that the 75,000 volunteers for whom he had called would arrive in Washington and defend the city against a possible Confederate attack. Many would come from the northeast -- Boston, New York, and Philadelphia. But all of the rail connections from the northeast into Washington ran through the city of Baltimore, 40 miles to the northeast. Herein lay a problem; there were numerous Confederate sympathizers in Baltimore and the city itself, at that time, had a reputation for unruliness -- it was known as "Mob City." To complicate matters further, it was necessary for passengers enroute from the northeast to Washington to change stations in Baltimore.
"Shortly after troops from the northeast began arriving in Baltimore on their way to Washington, a riot broke out while soldiers were in transit from one station to another. A hostile crowd pelted the troops with stones. The troops in turn fired shots into the crowd. Several soldiers and several bystanders were killed.
"That night, the chief of police of Baltimore, who was an avowed Confederate sympathizer, and the Mayor of Baltimore, who was a less open one, spearheaded a group of Confederate sympathizers who took matters into their own hands. They blew up the railroad bridges leading into Baltimore from the north. As a result, troops bound for Washington had to be sent on a circuitous journey by ship from a point on the Chesapeake Bay above Baltimore to Annapolis, from which they traveled to Washington by land. In response to the situation in Baltimore, Lincoln, at the behest of his Secretary of State, William H. Seward, took the first step to curtail civil liberty -- he authorized General Winfield Scott, commander-in-chief of the Army, to suspend the writ of habeas corpus at any point he deemed necessary along the rail line from Philadelphia to Washington. Scott took full advantage of this authority, and several weeks later, federal troops arrested a man named Merryman, whom authorities suspected of being a major actor in the dynamiting of the railroad bridges. He was he confined in Fort McHenry, and immediately sued out a writ of habeas corpus.
"The day after Merryman sought the writ, Chief Justice Roger Taney, who was sitting as a circuit judge in Baltimore, ordered the government to show cause why Merryman should not be released. A representative of the commandant of Fort McHenry appeared in court for the government to advise Taney that the writ of habeas corpus had been suspended, and asked for time to consult with the government in Washington. Taney refused, and issued an arrest warrant for the commandant. The next day, the marshal reported that in his effort to serve the writ he had been denied admission to the fort. Taney then issued an opinion in the case declaring that the President alone did not have the authority to suspend the writ of habeas corpus -- only Congress could do that -- and holding that Merryman's confinement was illegal. The Chief Justice, knowing that he could not enforce his order, sent a copy of it to Lincoln.
"Lincoln ignored the order, but in his address to the special session of Congress which he had called to meet on July 4, 1861, he adverted to it in these words: Must [the laws] be allowed to finally fail of execution even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted, and the government itself go to pieces less that one be violated?
"Lincoln, with his usual incisiveness, put his finger on the debate that inevitably surrounds issues of civil liberties in wartime. If the country itself is in mortal danger, must we enforce every provision safeguarding individual liberties even though to do so will endanger the very government which is created by the Constitution? The question of whether only Congress may suspend it has never been authoritatively answered to this day, but the Lincoln administration proceeded to arrest and detain persons suspected of disloyal activities, including the mayor of Baltimore and the chief of police."
These are excerpted from Rehnquists remarks to the Director's Forum, Woodrow Wilson International Center for Scholars, November 17, 1999.
"The attempt to reinforce Sumter will provoke an attack and involve war. The very preparation for such an expedition will precipate war at that point.
~ William Seward ~
"There was not a man in the Cabinet that did not know that an attempt to reinforce Sumter would be the first blow of the war."
~ Gideon Welles ~
"They have placed an engineer officer at Fort Pickens to violate, as I consider, our agreement not to reinforce. I do not believe that we are entirely absolved from all agreement of January 29."
~ General Bragg ~
"Dissolution of the Union is better than a conflict. I will oppose any attempt to reinforce Sumter if it means war."
~ Salmon P. Chase ~
"The question of reinforcing Fort Sumter has been under consideration in the cabinet, and it is understood that the question, whether or no, it is not desirable to withdraw all the troops except two or three men, rather than incur the bloodshed which will probably occur, before troops and supplies are put into it, is now to be decided. The question has been under discussion in high military circles for some days. Gen. Scott advises that reinforcements cannot now be put in without an enormous sacrifice of life. He is understood to say, that we have neither military or naval force at hand sufficient to supply the Fort against the threatened opposition, which it would require twenty thousand men to overcome. Besides, if it should initiate civil war, in addition to uniting the South, and overwhelming the Union sentiment there, in the waves of passion, it would require two hudred and fifty thousand Government soldiers to carry on the struggle, and a hundred millions of money to begin with."
~ The New York Times, March 11, 1861 ~
The Buchanan administration had an understanding with Governor Gist of South Carolina that the federal government would not attempt to reinforce the garrison in Charleston if Governor Gist would guarantee the safety of the federal facilities in the area. That agreement was violated long before President Lincoln was inaugurated when South Carolina seized Fort Moultrie, Castle Pinkney, the federal arsenal, and other federal facilities in the area in December and January. Then they fired on ships flying the stars and stripes in January and again in April the week ebfore it finally initiated the war by firing on Sumter In Florida, local militia started demanding the surrender of Pickens on January 12.
Congress should have been consulted before initiating any action to violate the armistice.
As I pointed out the armistace had been voided by the south long before President Lincoln had entered office. When he sent supplies to Sumter he made it clear in a communication to Governor Pickens that he planned on landing supplies only, and would land arms and reinforcements only if the supply effort was opposed. He needed no congressional approval for that, even if Congress had been in session. The responsibility for peace or war lay with the confederate regime, and they chose war.
Chief Justice could not have ruled that suspension of the writ power was a matter for the legislature to decide because the matter never appeared before the court while he was Chief Justice.
ok.
This is not an admission by Lincoln that he took unconstitutional measures.
Not evident, see below.
He is providing a rationale for his actions during critical and unpredictable circumstances. He is, in essense, explaining why he assumed certain war powers.
Doesn't that last part contradict your previous statement above? The president cannot assume powers not delegated by the constitution - hence, unconstitutional.
The 'logic' of the argument has come full circle. Lincoln assumed powers, made valid by his statement that it was acceptable. Such is to vest full authority in the executive. A plaintext reading of the constitution does not support that actions of the president are constitutional by his word, but by that instrument itself.
And once again we also find this paradox: For Congress to later ratify his actions, a quorum would be required, no? So were the Southern states still in the Union?
Other accounts state that a quorum did not exist, I've never seen an actual vote count out of the Neosho session. I've read accounts that when the Missouri legislature reconvened in Cassville a week later there were only 11 senators and between 35 and 44 representatives, far below quorum requirements. There may not have been many more than that in Neosho.
What powers did President Lincoln assume that were unconstitutional?
That is ridiculous. If that were true, they would have --insisted-- that the legality of secession be brought before the Supreme Court, as required by the Judiciary Act of 1789.
Many of the rebels tried to correlate their actions with those of the revolutionary generation. They well knew they were going outside the law. How do you think George Washington gott on the great seal of the so-called CSA? Because he was a revolutionary. It sure wasn't because he advocated an "immovable attachment" to the national union.
And this reverence for law you imply didn't stop the planters from trying to denounce their debts to northern creditors either.
The rebel congress passed in May, 1861 a bill that required PRIVATE debt owed to northerrn creditors ( a sum of @ $200,000,000) be paid to the rebel treasury.
The rebels were backwards, dishonorable bums, every one of them.
I was just reading last night about how Robert E. Lee, supposedly so unwilling to see Virginia coerced by the federal government, was very willling to see men coerced into the service of the insurgency. He supported the conscription act of 1862.
Walt
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