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What Happened in December 1861

I

Lincoln and McClellan Begin Their Struggle

 

By December 1, 1861, Abraham Lincoln was not in a happy frame of mind. When he brought George McClellan to Washington, after the battle of Bull Run, McClellan had told him the Army of the Potomac would be ready to take the offensive against the enemy in front of Washington by November. But November came and went without McClellan getting the army into motion, and now it was December, the Congress was again in session, the Government was now $600 million in debt, with six hundred thousand men in uniform, and the pressure on Lincoln to get his generals moving, fiercely intense.

 

The Military Situation in Front of Washington

 

Without question, the military situation in December 1861 was a frank embarressment to Lincoln.Nine months had passed since he had instigated the opening of the war; in that time, a major battle had been fought and lost less than thirty miles from Washington, the Union army had expanded from a mere few thousand regulars to almost a million men, with thousands of pieces of field artillery and thousands of cavalry horses. And yet, Lincoln's armies were still hanging on the perimeter of the borderland between the Union and territory controlled by the seceded States. Somehow Lincoln had to get his army moving, had as a first step to get it to push away the rebels in front of Washington, but how to do it was proving to be extremely frustrating.

 

After a series of conferences with McClellan that got him nowhere, Lincoln set pen to paper on December 1 and sent McClellan what he called a "Memorandum on Potomac Campaign:" In it, he put to McClellan the question, "How long will it take you to actually get the army in motion?" McClellan answered this nine days later, "Probably December 25."

 

The memorandum is a curious document; Lincoln, acting as Commander-in-Chief, gives his young General-in-Chief a plan for turning the rebel army, under Joe Johnston, out of its position at Centreville. Here it is as Lincoln wrote it.

 

"Suppose that part of our force now on the south side of the Potomac moves forward and menaces the enemy at Centreville. The remainder on the south side to cross the Occoquan by the road from Alexandria towards Richmond; there to be joined by the whole moveable force from north of the Potomac, having landed from the Potomac just below the mouth of the Occoquan; then the whole force together, to move by the road to Brentsville, and get across the Orange & Alexandria Railroad just south of its crossing of Broad Run, a strong cavalry detachment having gone ahead to destroy the railroad bridges south and north of that point."

 

Lincoln's Plan of Movement on the Rebel Army

 

Lincoln's idea, here, was that the force landing from the Potomac at the mouth of the Occoquan would be in position to attack the rear of any resisting force the rebels might use to block the crossing of the Occoquan at Wolf Run Shoals. Likewise the force crossing the Occoquan at Wolf Run Shoals could attack the rear of any rebel force resisting the landing at the mouth of the Occoquan. While this was going on, the force in front of Centreville would be attacking the rebel force in its front, to prevent it from reinforcing the rebel forces resisting the crossing of the Occoquan. If the Union force at Centreville ran into trouble, it could, Lincoln wrote, "fight back slowly into the entrenchments behind them."

 

All of this, taken in the abstract, is reasonably intelligent military planning, as far that is as "plans" go; but it really was not Lincoln's place to be playing the part of the army commander. Lincoln, as President and Commander-in-Chief, might well say: "I want you to get those people at Centreville out of there," but it was hardly his place to be telling the army's field commander how to accomplish it.

 

In fact, Lincoln was now pushing the plan that Generals Scott and McDowell had proposed and which he had rejected six months earlier, when he ordered McDowell to advance directly against the Confederate forces behind Bull Run (See, Joe Ryan's Battlewalks: Bull Run).

 

Then as well as now, Lincoln was merely thinking about pins on the plane of a piece of paper, not focusing on the realities of moving an army in the field. Clearly, from the outset, the generals—Scott, McDowell, McClellan—understood the strategic value of getting on the Orange & Alexandria Railroad from the direction of Brentsville; this feat would automatically force the rebels to abandon the Bull Run line and fall back to at least the Rappahannock. But to accomplish it, McClellan, as McDowell and Scott before him, would have to march a large column, by the only road leading to Brentsville, through dense forest between ridges and over streams, guarding its right flank as it moved from attacks coming from the Bull Run and Occoquan fords.

 

Looking South down the Occoquan, at the Brentsbville Ford

 

Looking North up the Occoquan, at the Bridge Crossing to Brentsville

Back in June 1861, Lincoln had given McDowell only 30,000 troops to do the job of driving the rebels away from Bull Run, and he had had no patience with the idea of McDowell taking months to work the army over the Occoquan, reach Brentsville, cross Broad Run below the mouth of Bull Run and inch up to the Orange & Alexandria Railroad.

 

McDowell's Preferred Line of March in July 1861

 

 Now Lincoln was giving McClellan 120,000 men and almost 20,000 cavalry, and had apparently reconciled himself to the fact that the movement would take time, but notwithstanding winter setting in, he wanted McClellan to move the army forward now.

 

Plainly, if McClellan had put Lincoln's plan into operation it necessarily meant that the army would have to march, in one long column of fifteen miles or more, along a single country road that ran through a dense forest on a ridge between breaks that fell down to the Occoquan River. At the time Lincoln wrote his memorandum, the weather in northern Virginia had been cold and dry, leaving the roads firm enough for artillery carriages and cassions to pass; but McClellan certainly could not expect this weather would hold steady during the entire time it would take for the army to reach Brentsville and prepare to fight for possession of the Orange & Alexandria Railroad south of Bull Run. Snow and rain could be expected, along with freezing temperatures one day and thawing temperatures the next. This meant that the roads would become bogged, and the horses would be quickly worn out pulling their loads forward. Rebel attacks against the army's right flank could be expected, forcing the army to construct barricades across the tracks that came south from the fords.The odds, therefore, were heavy in favor of the proposition that the prompt execution of Lincoln's plan would result in the army becoming stalled in the forest between Brentsville and the crossing of the Occoquan at Wolf Run Shoals and unable to extricate itself until the spring. Nothing would be accomplished in the endeavor, as far as McClellan could see, except a great deal of labor and suffering of the men and deterioration of the horses.

 

The Road Through The Forest Toward Brentsville

 

The record is not clear as to whether McClellan offered his own plan of operations to Lincoln in December. But he did brush off Lincoln's. On December 10, he replied to Lincoln's memorandum with the statement—"I have now my mind actively turned towards another plan of campaign that I do not think at all anticipated neither by the enemy nor by many of our own people." McClellan was formulating in his mind, at this time, the concept of bringing the army with little loss of energy into a position in front of Richmond, either by landing it at Urbanna at the mouth of the Rappahannock and marching directly for the headwaters of the York River, or march there from Fort Monroe at the base of the Yorktown peninsula. The predicate for this plan was the fact that the rebel army at Bull Run would be forced by its execution to immediately fall back to block McClellan's advance upon Richmond.

 

 

 

 

McClellan's Plan of Campaign

On the same day that McClellan sent his written reply to Lincoln's memorandum, the Congress, again in session, established the Joint Committee for the Conduct of the War. The Senate, now controlled by the Republicans, appointed the Radical Republicans Ben Wade, of Ohio, Zachariah Chandler, of Michigan, and Andrew Johnson, an erstwhile Democrat representing the seceded state of Tennessee.

 


Ben Wade 

Zack Chandler

Andy Johnson

 

Three Radical Republicans Who Did Not Like McClellan

 

The House appointed similar personalities: George Julian and Moses Odell.

 

The Committee's first order of business was to summon McClellan to appear before it and be interviewed. Mac replied to the Committee's summons cordially, on December 22, saying he would appear on December 23. At about the same time, on December 19, Lincoln, in the company of a witness, his friend Orville Browning from Illinois, appeared at the house on H Street that McClellan had just rented and sought to draw out from McClellan the details of his plan, but McClellan dodged him. Conveniently, a few days later, Mac suddenly became unable to either move the army toward Centreville or appear before the Committee, reporting himself ill with typoid fever. Although the Radical Senators assumed McClellan was feigning illness, to avoid being grilled by them, his correspondence over this time makes several references to his illness which give him some, though some might argue—manufactured—credibility.

 

The New York Times

 

 

Whether McClellan's illness was real or feigned is a question mark. In his Report and Campaigns published in 1863, he described the situation this way:

 

"About the middle of January, 1862, upon recovering from a severe illness, I found that excessive anxiety for an immediate movement of the army of the Potomac had taken possession of the minds of the administration."

 

In his posthumously published autobiography, McClellan's Own Story, the matter is put this way:

 

"The difficulties of my position in Washington commenced when I was first confined to my bed with typhoid fever in December and January and culminated soon after Mr. Stanton became Secretary of War. . . .My malady was supposed to be more serious than it really was; for although very weak and ill, my strong constitution enabled me to retain a clear intellect during the most trying part of the illness, so that I daily transacted business and gave the necessary orders, never for a moment abandoning the direction of affairs. . . it more than once happened that the President called while I was asleep. . .and being denied admittance, his anxiety induced him to think that my disease was very acute. . . ."

 

(It appears that McClellan did not produce much, if any, correspondence between December 23 and January 3, a period of about ten days. (Empty gaps appear in his Own Story and his Report and Campaigns as well as in Stephen W. Sears's The Civil War Papers of George McClellan.)

 

Thus, was Lincoln enthusiasm for an immediate movement of the Army of the Potomac curbed, forcing him to fend off as best he could the clamor going on around him for immediate action: the radicals were constantly picking at him to get McClellan moving, the bankers who were underwriting his war effort, by marketing financial products to the public, were picking at him to get McClellan moving, and it was indeed mortifying that he was unable to show the Europeans that the Union was on top of things.

 

II

Lincoln's Message To Congress

 

Upon the opening of the second session of the thirty-seventh congress, President Lincoln presented it with a message, most of the content of which was standard fare: a brief reference to the cause of the war, the dispute with Britain over the Trent Affair, treaties with foreign countries, and the state of the departments of the government. Then he abruptly mentioned McClellan in a quite peculiar way:

 

"General Scott repeatedly expressed his judgment (for his replacement) in favor of General McClellan, and in this the nation seemed to give a unanimous concurrence. The designation of General McClellan is therefore to a considerable degree, the selection of the country as well as of the Executive. . . (This statement implies that McClellan had political power and that there was opposition to him in the Congress; as a Democrat, he was certainly not the Radicals' first choice, Irwin McDowell was.)

 

It has been said that one bad general is better than two good ones; and the saying is true, if taken to mean that an army is better directed by a single mind, though inferior, than by two superior ones, at cross-purposes with each other. (Here, it seems Lincoln is referring to himself as the inferior mind; this conclusion is based though on the speculation that Lincoln meant himself to be the single mind directing the army, and not McClellan; certainly he is stating he recognizes two minds cannot "direct" the army as well as can one mind.) (Lincoln's place was to direct the commanding general of the army, not the army.)

 

And the same is true, in all joint operations where [two minds] having a common end in view, differ as the choice of means. In a storm at sea, no one on board can wish the ship to sink; and yet, all go down together, because too many will direct, not allowing a single mind to control." (Here, he seems to be alluding to the pressure brought to bear against him by the Radicals who are already clamboring for the slaves by fiat to be freed.)

 

This passage foreshadows the emerging struggle between himself and his general for control of the direction of the Army of the Potomac in its operations against Virginia and her allies.

 

Then, Lincoln ended his message in a most strange manner. See if you Economics majors can make sense of it.

 

"There is one point to which I ask a brief attention. It is the effort to place capital on an equal footing with, if not above, labor, in the structure of government (How does he mean, "in the structure of government"?). It is assumed that nobody labors unless somebody else, owning capital, somehow by the use of it, induces him to labor. With this assumption it is considered whether it is best that capital shall hire laborers, and thus induce them to work by their own consent, or buy them, and drive them to it without their consent."

 

This two-sided economic system, of course, was the actual state of things in the America of 1861. In this context, judging the white men in their times, it is unreasonable to ignore the solid fact of history that, in America before 1776, capital could not induce laborers, in numbers necessary to forge plantations out of primal forests, to migrate to the South, by hiring them. The British government, intent on capitalizing on the natural assets of the Southern seaboard, had to choose between leaving the South undeveloped, or forcing laborers to work there without their consent. The British government eventually chose the latter policy which introduced into America millions of Africans as slaves.  This government policy was the true crucible that incubated America's civil war, because it saddled the "United States" with an alien population its citizens were naturally incapable of amalgamating at the time.

 

Lincoln went on, making no discernible sense; yet there is a hidden message here.

 

"Now, there is no such relation between capital and labor as assumed. Labor is prior to, and independent of capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital. It is admitted that there is a relation between the two, but not all labor falls within it. In most of the Southern states, a majority of the whole people of all colors are neither slaves nor masters (Lincoln here is switching "master" for "Capital.") Men with their families work for themselves, on their farms, in their shops, taking the whole fruit of their labor to themselves, and asking no favors of capital or labor (free or slave). . . . "(edited for clarity of concept)

 

Where was Lincoln trying to go with this? One can only guess as his analysis petered out like a forest trail. One might think he was trying to offer a glimmer of how the Negroes might, being made free laborers, integrate into America's white society. Here's how he finished.

 

"The prudent, penniless beginner in the world (as he was once), labors for wages awhile, saves a surplus (capital) with which to buy tools or land for himself; then labors on his own account another while, and at length (with his capital) hires another new beginner to help him. This is the just system which opens the way to all, gives hope to all, and consequent energy and progress and improvement of condition to all. No men living are more worthy to be trusted that those who toil up from poverty—none less inclined to take, or touch, aught which they have not honestly earned. . . "

 

Then he ended his message with a flight into the clouds.

 

"There are already among us those, who, if the Union is preserved, will live to see it contain two hundred and fifty millions. The struggle of today, is not altogether for today—it is for the vast future also. Let us proceed in the great task which events (in large measure of his own creation) have devolved upon us."

 

 

III

The House in Session

 

In the House of Representatives, after Lincoln's message was read, Mr. Thomas E Eliot, of Massachusetts, was recognized by the Chair and offered this resolution:

Thomas E. Elliot "Resolved, that we solemnly declare that the war has for its object the suppression of the rebellion, that while we disclaim all power under the Constitution to interfere by ordinary legislation with the institution of slavery, yet the war carries with it the maxim that the safety of the state is the highest law which subordinates rights of property and dominates over civil relations, that therefore we do hereby declare that the President, as commander-in-chief, has the right to emancipate all persons held as slaves in any military district in a state of insurrection against the national government." (edited for clarity)

 

 

 

The Cause and Object of the War

 

The resolution was taken up for debate, on Tuesday, December 12. Mr. Eliot commenced the debate with this.

 

"The first blow which was struck at Fort Sumter rendered the status ante bellum impossible. No, sir. No, sir. Reconstruction must come, but in the rebellious and seceding States, when it comes, it shall come, I believe, without the presence of the slave!

 

Why sir, it is a war question. Slavery caused the rebellion, did it not? Then is slavery outlaw. Slavery caused the war; the power of the slaveholders is carrying it on, and that power will be crushed; the curse of slavery is at the foundation of it, and that curse may be removed; but the object of the war is to recover the rightful authority of the United States and to put down treason. . . .

 

There they stand, the Negroes, with arms outstretched to us, yearning to help us, abandoned men, asking to be employed in peaceful pursuits, anxious for service and ready to receive the hire which labor may always rightfully demand. (Echoes of Lincoln?) What are we to do with them? I say, let the black hands gather in the crops, and as they work for the Government they become free men."

 

Eliot's resolution was followed by a similar one introduced by Thaddeus Stevens of Pennsylvania.

 

"Whereas slavery has caused the present rebellion in the United States and whereas there can be no solid peace and union so long as that institution exists within it; and whereas by the law of nations it is right to liberate slaves of an enemy to weaken his power; Therefore,

 

Be it resolved that the President be requested to declare free, and to direct all of our generals to order freedom for all slaves who shall leave their masters.

 

And be it further resolved, That the United States will make full and fair compensation to all loyal citizens who remain supportive of the Union for all loss they may sustain by virtue of this act."

 

Mr. John Steele, of New Jersey,, replied to the resolutions.

 

"Mr. Eliot asserted in broad terms that slavery is the cause of this war. I deny the proposition. I declare that the unnecessary agitation of the slavery question was the cause of the war.

 

I suppose that the question of loyalty is not to be settled upon the idea of who was opposed to the agitation of slavery and who favored it, but by who is prepared to stand by the government. That, I suppose, is now the test of loyalty.

 

In his message, the President said that `we should not be in haste to determine that radical and extreme measures, which may reach the loyal as well as the disloyal, are indispensable.' I say the President does not want legislation on this vexed question now.

 

Are the Rebels "insurgents" or "Belligerents?"

Mr. Martin Conway, of Kansas, rises to speak about the nature of the relationship between the antagonists.

"The Government claims the rebels are still in the Union. How can this be? The rebels have secured, under the recognition of nations, a belligerent character, in derogation of their responsibilities under the Union. The character thus confirmed to the rebellious States gives them a position they could not hold under the Constitution. It confers upon them a recognized status among nations to make war upon that Constitution. Why, then, does it not also exonerate the Government from any obligation to them dependant on that Constitution? How can they have rights under the Constitution the Government is bound to respect, while they are enjoying the rights of belligerents?  It is impossible to understand the logic requiring us to treat them as sister States, respecting rights as such, while they are warring upon us as a foreign enemy. In fact, then, as to them the Constitution is suspended.

 

The work of the Government is not, therefore, suppression of insurrection, in any intelligent sense; but the overthrow of a rebellious belligerent power. Its success does not signify the remitting of them to their original status in the Union; but implies their subjugation to the sovereignty of the Union, to be held as territories. This is clearly the present attitude of the case.

 

Now the evil of our system is the institution of slavery. It is the prolific source of national disaster. It is the sustaining cause, the object and chief resource of this rebellion; at the same time it is the point at which the most fatal blow may be inflicted upon it.

 

The abolition of slavery is no longer a `contraband' question. It has been elevated by events into a measure of wide-spread public importance. It is no longer the shibboleth of a sect or a party; but the overriding necessity of the nation. To retain slavery would be folly and wickedness. To eliminate it forever should be the unwavering determination of the Government. Yet, the Administration refuses to heed such counsel, and persists in regarding the institution as shielded by some constitutional sanction that it is not at liberty to infract. It is impossible, if we pretend the rebels are still subject to the Constitution, to abolish slavery by act of Congress, much less executive proclamation. The thing is impossible. It can be abolished only by the States themselves. Giving freedom to five millions of slaves on the principle of military necessity to suppress insurrection is but a dream. Yet, as toward a foreign nation or belligerent power, we can accomplish the without difficulty. Now the war power and nothing else solves the problem.

 

Lincoln's Abuse of Executive Power

 

A few days later, George Pendleton, of Ohio, offered a resolution dealing with the conduct of Lincoln's administration using military officers to arrest people and throw them in prison without recourse to the judicial process of the courts.

 

"Resolved, that the Congress alone has the power, under the Constitution, to suspend the  privilege of the writ of habeas corpus; that the exercise of that power by any other department of the Government is a usurpation, and therefore dangerous to the liberties of the people; that it is the duty of the President to deliver people arrested without judicial warrant to the custody of the marshall, that they may be indicted and enjoy the right to counsel, to speedy and public trial by an impartial jury in the state wherein the offenses alleged against them have been committed."

 

Mr. Pendleton then spoke in support of his resolution:

 

"In June last, the members of the board of police of the city of Baltimore, in whom the whole police power of the city had been intrusted by law, were arrested upon the order of General Nathaniel Banks and thrown into prison. They requested to be informed of the charges against them. Their request was refused. The privilege of the writ of habeas corpus was declared to be suspended, and a legal examination before a civil court was denied them. They were helpless: they were held by the strong arm of the military power, and were deprived of every safeguard or personal liberty, which had been assured to every citizen by the Constitution. (One hundred and fifty years later, here our Government is, doing the same thing.)

 

On July 24, this House passed a resolution requesting the President to communicate the grounds for the arrest. The President refused to comply with the request, alleging that it was judged to be incompatible with the public interest to furnish that information.'

 

These persons have been seized without a warrant, held without in indictment, deprived of due process of law, denied a speedy trial, not informed of the charge against them, not allowed to confront the witnesses against them. They have appealed their plight to Congress and my colleagues on the Judiciary Committee can find no more appropriate answer to the prayer than that it shall lay unanswered on the table. (Ditto, today.)

 

The President claims distinctly the authority to arrest and detain, without resort to the ordinary forms and processes of law, all persons whom he or his generals might deem dangerous to the public safety, and he claims this authority upon the ground, notwithstanding the Constitution, `when it is believed that disregarding the single law would tend to preserve the Government.'

 

The Attorney General, in defending this conduct, claims it is not legally possible for the courts to call the President before them to answer for it.  But this is no ground to support the claim the President has acted on the basis of power granted him by the Constitution. The President may direct his minions to arrest a citizen, to disregard the writ of habeas corpus, imprison the lawyer who petitioned the court for it, and the judge who issued it, and to shut the courts who would hear it. But none of these acts give him the authority which the Constitution has withheld from him, to do these acts.

 

Whispers of the Past Reach us in the Present

 

We are told that the Constitution was not intended for times of civil war (and we in our age are told, neither was it intended a war on "terror." Next it will be drugs). The answer to this, is that the framers intended that the Constitution should prevail at all times, in war as well as in peace. They invested the Government with all the power it was intended ever should be used. If laws are too mild, let them be made more stringent; if crimes have not been defined, let them be denounced, and punishment assigned to them; if officers are corrupt let them be removed; if judges are imbecile or dishonest, let them be impeached; let the machinery of Government all be used, and power enough will be found. Whoever would go beyond this, would subvert the government under pretense of preserving it; would destroy the Constitution under pretense of upholding it. To suspend the Constitution in order to preserve the Government would be to take out the life to preserve the heart. To preserve the Government the Constitution must be preserved, its principles must be cherished, its limitations must be respected, its prohibitions obeyed. The founders established the Constitution `to secure the blessings of liberty to themselves and their posterity,' and invented the Government only as a machine to administer it.

 

`Let there be no change by usurpation,' said Washington, in his farewell address;  `for through this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.'

 

If it is permitted now, it will be repeated; precedent will give authority; the tone of the public mind will be gradually degraded; its sensibility to infractions of public liberty will be deadened. . . and the nation slowly loses both the desire and the power to maintain their liberties.

 

It is vain to say that when the public danger shall have passed away these usurpations will cease, the Constitution will be restored to its vigor, and the people resume their accustomed liberties. When was it ever so? When was power ever shorn of its acquisitions, save by the sword? When were liberties, once surrendered, ever reconquered except in blood? (When will the military, the CIA, and the FBI get their noses back out of citizens' private affairs? When will the Department of Homeland Security disappear? When will Gitmo close? When will "detainees" get their day in court?) You cannot make a nation jealous of its rights by teaching it that, in times of great public danger, the citizen has no rights. You cannot make it sensitive to its rights by teaching that in times of danger it must rely on the power and good will of its rulers.

 

No free people should ever listen to this argument of state necessity. Its history is marked by the wreck of popular liberty and free institutions. As we look back on its pathway, we may easily imagine that the very spirit of American liberty prays it may not fall to the list of victims. We have seen its effect in our day. An imperial throne built upon the ruins of oaths broken, rights violated, liberties despised, and a nation oppressed, is but the familiar story with which we close one page of the history of `state necessity.'

 

We are told that in times of great public danger the people should strengthen the bands of their rulers by confidence in the integrity of their motives, and in the wisdom of their measures. Yes, truly! Strengthen them with the confidence of the people so long as they confine themselves to the powers granted by the Constitution; but paralyze them with distrust when they begin the work of usurpation."

 

From the Civil War to the War of Terror, the bridge of time links Lincoln to Bush and Obama; links the rising armies of the Union to the present Government's awesome monolithic power, underwritten by its private military machine, fed by the insatiable profit-seeking greed of the defense industry and its lobbyists and its pocket-politicians, which only a fool can doubt will be instantly exerted against any American citizen, much less "State," that rebels against its usurpations.

 

Mr. John Bingham, of Ohio, with a flip of his hand, like Lindsey Graham, or Jeff Sessions, or Oreon Hatch, answered Pendleton's protest with a few sentences:

"When rebellion (or "terror") has lifted up its hands over one half of the Republic, and its madness and fury strive to shake down the pillars of the temple of constitutional liberty, and drench the land in the blood of its children, it is no time to be splitting hairs and carping about the question whether the Congress or the President shall first exercise the power of suspending the privilege of the writ of habeas corpus.

 

I mean no disrespect to my colleague, but, assuming his position is correct, the logical conclusion is, that we have been derelict in our duty in not having moved a suspension of the writ, and armed the President with the power imposed on him by the words of the Constitution, and by that oath he took to `preserve, protect and defend the Constitution.' (Oh, don't you see, the founders meant the President's oath to swallow all they wrote.) The laws are to be executed and they can only be executed by the power of the sword.

 

I think nothing more needs to be said on the subject. It does not lie in the mouths of these persons, who have been arrested, to come here and claim the privilege of the writ of habeas corpus, when they have been trampling the Constitution under their feet (Is not Mr. Bingham, like the rest of his ilk, putting the cart before the horse?) . I move to lay the whole subject upon the table."

 

The Union's Harbor Forts to Gitmo: it's all the same

 

Until the middle of February 1862, William Seward, Lincoln's Secretary of State, had supreme control of the system by which nearly a thousand American citizens—police officers, city mayors, politicians, including ex-Senator Gwin and ex-Governor Moorehead, of Kentucky, ex-Senator George W. Jones, of Iowa (and almost ex-President Franklin Pierce)—were seized in different parts of the country and hurried off to Fort Lafayette, in New York Harbor, Fort McHenry, in Baltimore Harbor, and Fort Warren, in Boston harbor

 

As is happening in our time now, this conduct on the part of the Federal Government was and is no different than the actions of the ancien regime in France which used lettres de cachet to throw French citizens in the Bastille. Seward's conduct, as Lincoln's, can be morally justified, if at all, solely upon the basis of claiming necessity.

 

An example of Seward's conduct:

 

Department of State, August 17, 1861

John A. Kennedy, Superintendent of Police, New York

Arrest Charles Kopper, of Carroll County, Mississippi, now in your city, and send him to Fort Lafayette.

           William H. Seward

 

Then, as now, the most dangerous feature of this extra-judicial imprisonment of citizens was that it often operates immediately on mere rumor or suspicion.

 

Even ex-Presidents were not immune from the reach of Lincoln's Bastille. Franklin Pierce had been Seward's political enemy for years before the Civil War. He was as intense a hater of antislavery preachers as Seward was a lover. Pierce did not conceal his dislike for Lincoln's war policy, making many speeches in different locales during the fall of 1861. A man, listening to one of these speeches, wrote a letter about it, which referred to "President P" and said, "his speech, has drawn many men into the (secret anti-government) league. He is cautious, but is gradually preparing the minds of the people for a great change." The letter miscarried and came into the hands of a United States marshall, who sent it to Seward. On the strength of it, Seward sent Pierce the following note.

 

Department of State, December 20, 1861

Franklin Pierce, Esq., Concord, N. H.

Sir,—I enclose an extract from a letter received at this Department, from which it would appear that you are a member of a secret league, the object of which is to overthrow the government. Any explanation upon the subject which you may offer would be acceptable.

           William H. Seward

 

Pierce replied: "Nothing but the gravity of the insinuation, the high official source whence it came, and the distracted condition of our country could possibly lift this matter above ridicule and contempt."

"Not one of the one thousand men arrested was brought to trial; as a rule they were not even told why they were arrested. When the pressure for judicial procedure or a candid discussion of the case became too strong to be resisted on plausible grounds, the alleged offender was released." (See, Frederic Bancroft, The life of William H. Seward, Vol II, at p. 276 Harpers and Brothers, 1899; see also, the story of Jose Padilla and company in the Trial Lawyers Notebook)

 

Of course, the basis of the government's conduct, whether then or now, is not to punish, but to supposedly prevent action. Certainly, it can be reasonably said that Lincoln's holding Maryland to the Union was doubtful, if the mayor and police commissioners of Baltimore, several members of the legislature, and many prominent citizens of both Maryland and Virginia had not been thrown in military prisons and held without access of the courts. But weren’t they acting legally in advocating secession? So power will always ignore the limits to its exercise imposed on the government by its founders, most of whom were slaveholders.

 

Pendleton's resolution, like Eliot's, was laid upon the table.

 

On December 28th, Lincoln wrote Seward:

 

"Might we let Governor Morehead (of Kentucky) loose?"

 

IV

The Senate in Session

The Senate's first order of major business was to address the issue of the Government freeing slaves by confiscating them. Mr. Trumbull, of Illinois, the bill's sponsor, spoke first.

 

"The power of Congress to pass a bill, of this character, is, to my mind, unquestionable; but I do not place it on the ground which has been advanced in some quarters, that in times of war the military is superior to the civil power; or that in such times what persons may choose to call necessity is higher and above the Constitution. Necessity is the plea of Tyrants (tell that to our Supreme Court), and if our Constitution ceases to operate the moment the President thinks there is a necessity to violate it, it is of little value. I hold that under our Constitution the military is as much subject to the control of the civil power in war as in peace. (So when a President uses the military to crush dissent, on the plea of necessity, what power exists in the country today that can practically oppose him?)

 

Just Another Senator Talking Out of Both Sides of his Mouth

 

(Here Trumbull leaps into the void, leaving all he just said behind) When, therefore, our armies go forth to suppress insurrection, and in doing so shoot down rebels and desolate their abodes, they are as much subordinate to the civil power as when engaged in a holiday parade; and slaves seized and appropriated to the military in insurrectionary districts in suppression of the rebellion, are legitimately taken as if condemned to forfeiture by the judicial authorities in districts in which judicial process is not obstructed.

 

How are we better than the rebels, if both alike set at naught the Constitution? I warn my countrymen, not to sanction usurpations of power, which may hereafter become precedents for the destruction of constitutional liberty. (All that Bush and Rumsfeld did, they told the courts, was no more or less what Lincoln did.)

 

(Trumbull speaks with forked tongue as the Indians would say.) The authority of the Army in the suppression of an insurrection to seize and appropriate the property of rebels and free the persons they hold in bondage, is as ample and complete under the Constitution as that of a court in peaceful times to arrest and execute a murderer. That the judiciary has no right or power to interfere with the Army in the exercise of its powers, either by issuing writs of habeas corpus or otherwise, is apparent, from the fact that the only ground on which the military authority can be invoked at all, is, that the judiciary being overborne, is incompetent to the task.

 

The Tyrant's Plea: necessity.

 

(Now Trumbull comes back to necessity) According to the modern usage of nations, private property of alien enemies on land has not been forfeited; but the right of forfeiture is unquestionable, and may be exercised if necessary to secure the just ends of the war. The right to free the slaves of rebels would be clear, for it is as property that they profess to hold them; but as one of the most efficient means for attaining the end for which the armies of the Union have been called forth, the right to restore to them liberty, of which they have been unjustly deprived, is doubly clear.

 

Can there be a question on this point? Who does not know that treason has gained strength by the leniency with which it has been treated? We have dallied with it quite too long already. Thousands of businessmen ruined by this causeless rebellion; more than 20 million people now contributing their means to its suppression; more than half a million men encamped in tents, the blood of the noble-hearted, of Lyons, of Baker, the slaughter of thousands and the destruction of free government—these and a thousand other considerations all demand that the rebels should suffer for the enormous crimes they are committing against public liberty.

 

(Now he jumps backward again) But while fighting this battle in behalf of constitutional liberty, it behooves us especially to see to it that the Constitution receives no detriment at our hands. We will have gained but little in suppressing the insurrection, if it be at the expense of the Constitution; for the chains which the bondman wears are none the lighter because they were forged by his own and not another's hands. Let us preserve the Constitution perfect in all its parts. Then, when the struggle is over, we will have an assurance that our Government is stronger than before."

 

Upon Trumbull's close, the bill was referred to the Committee on the Judiciary.

 

Ten days later, Trumbull offered a resolution:

 

"Resolved, That the Secretary of State be directed to inform the Senate whether, in the loyal states of the Union, any person has been arrested and imprisoned and is now held in confinement by orders from him, and, if so, under what law has the person been arrested and imprisoned."

 

The resolution was objected to and laid on the table. Then referred to the Judiciary Committee. Whereupon Mr. Milton Latham, of California, objected, offering this.

 

"I object and call for the yeas and nays. I see no reason to trample on the Constitution to maintain it. We present to the world a humiliating spectacle, in upbraiding revolting states for violating the Constitution, when we ourselves are committing equal if not greater outrages upon that Constitution. What is it? One man, unauthorized by the Constitution or the law, usurps the power to arrest the citizen, to incarcerate him, to hold him in prison upon the tenure of his will, without the courts, Congress, the people, or anybody knowing the reasons for this usurpation?"

 

Mr. William P. Fessenden, of Maine, now speaks up.

 

"I have no question, indeed I know, that, under the directions of the Secretary of State, certain individuals in the loyal states have been arrested and imprisoned. That is notorious; the whole country is aware of it. I will say here that I do not believe there is the slightest warrant of law for any such proceeding, and I do not suppose you will find a lawyer in the country who does think there is any warrant of law for any such proceeding; and yet I do not shrink from it. I justify the act, although it was against the law, by necessity. Why do I say this? Because, in my judgment (forget the courts when we have Fessenden's "judgment" This sounds like that Senator from South Carolina, Mr. Lindsey Graham, in all the glory of his pontificating.) it was absolutely necessary to the Government.

 

That is my opinion; but sir, while I express that opinion, I say that when the Executive steps beyond it (how can necessity ever not be invoked successfully with Fessenden or Graham the arbiter?), when the people see, or the representatives of the people see, that he is daring for a moment to use that power and that pretense of necessity for a nefarious purpose, for any purpose that is not fully justified by the facts before him—when the country sees, or believes, or dreams, or suspects that he is acting from anything but the highest motives that should actuate a public officer, then I would be (finally?) ready on the instant to check the first advance, and lay my hand upon the man.

 

Furthermore, I say that the people have approved these acts. Why? Because the people of the country believed they were necessary. They saw at the instant that it was a stretch of power, and yet they justified it, and from the very feeling and the very opinion which I have expressed here—they believed in the necessity of prompt, immediate action." (So says the stooge always.)

Mr. Browning, of Illinois, follows Fessenden with this:

 

"This discussion is the same, I think, substantially, that was forced upon us the last session by the Senator from Kentucky (John Breckinridge) who went from his seat in the Senate to join the rebel army, and make his efforts there more efficient toward the overthrow of the Government than he had succeeded in making them here. If that Senator were here now, I have no doubt he would advocate the passage of this resolution and I have no doubt that its passage would be the occasion for universal rejoicing with every traitor in this land." (See, What Happened in July 1861 and John Breckinridge standing on the Constitution in his last days in the Senate.)

 

Trumbull now seizes the floor, in a rage that Browning has accused him of bad motive etc. The two wrangle, with Fessenden stepping in and out trying to sooth them both. The Vice President breaks in, calling for the yeas and nays on the motion to refer the resolution to the Judiciary Committee. The yeas have it, 25 to 17.

 

 

 

One hundred and fifty years after Lincoln's administration we have Obama's; in between we have the examples to compare, of Roosevelt's, Johnson's, and Bush's; Republican or Democrat, liberal or conservative, it doesn't matter which party is in power. To preserve itself, against domestic opponents as well as foreign,  these parties have demonstrated, time after time, they will have the Government do whatever it takes, use any force, adopt any tactic, to keep control; ignoring with hardly a shrug the letter, much less the spirit, of the framers' constitution.

 

IV

Lincoln Bails Out of the Confrontation with Britain

Over the Trent Affair

 

 

 

 

 

 

 

Fort Warren's Sally Gate



Mason

Slidell

 

On December 26, Mr. John Hale, of New Hampshire, gained the Senate floor and demanded that the Administration turn over the correspondence between it and the British government over the capture and imprisonment of Mason and Slidell, diplomatic envoys who were seized on the high seas while traveling between neutral ports.

 

Mr. Hale: "I believe that the Cabinet today and for some days past have had under consideration a measure which involves more of good or evil to this country than anything that has ever occurred before—I mean the surrender, on the demand of Great Britain, of the persons of Mason and Slidell. To my mind, a more fatal act could not mark the history of this country—an act that would surrender at once to the arbitrary demand of Great Britain all that was won in the Revolution, reduce us to the rank of a second-class power (Heaven forbid!), and make us the vassal of Great Britain. I would not surrender these men, to escape war with Great Britain.  I have seen many gentlemen and I have found not one in favor of giving these men up. Let war come rather than see our honor tarnished. I tell you hundreds of thousands will rush to the battlefield to prevent this. (Is this man nuts?)

 

If this Administration will not listen to the voice of the people, they will find themselves engulfed in a fire that will consume them like stubble; they will be helpless before a power that will hurl them from their places. If war comes we will be fighting for constitutional liberty."

 

Mr. Charles Sumner, of Massachusetts replied with more sense.

 

"There is no evidence that Great Britain has made an arrogant demand. How does Mr. Hale know otherwise? Who in this country knows it? I think this question will be settled peaceably and honestly. I do not think it is a question to be settled by war."

In the Cabinet, on December 25, Salmond Chase expressed the reality of the matter of Slidell and Mason's removal from the British merchant ship, Trent.

 

"In taking the rebel envoys from the Trent, Captain Wilkes clearly violated the Law of Nations, and in that very principle which the United States have ever most zealously maintained. Great Britain, therefore, has a right to ask from us a disavowal of the act, and the restoration of Slidell and Mason to the condition in which they were taken; it is our duty to do what is thus asked."

 

The issue of giving the envoys up consumed several days of meetings of the Cabinet, including a long contentious one on Christmas Day. The task of restoring Slidell and Mason to their voyage eventually fell to William Seward. In late December, Seward wrote a long, convoluted message to Lord Lyon, the British Ambassador, that attempted to justify the seizure of the men in a way designed to placate the passions  the politicians had aroused in the people. Though successful in this, Seward's argument was silly in terms of the law. To defend what Wilkes had done, Seward took the untenable position that Mason and Slidell—in point of fact diplomatic agents of a belligerent power  proceeding between neutral ports in a British merchant ship, which was as free from Confederate control as any packet between Calais and Dover—were "contraband" of war. To sustain his position, Seward resorted to remarkable absurdities, citing irrelevant British decisions and ignoring settled international law to the contrary and the position taken many times in the past by the United States. (After countless declarations by the Lincoln government, during the previous eight months, that the Confederates were not belligerents, but insurgents, Seward's whole argument hung on the fact that they were belligerents.) But, then, having raised the argument as a means of soothing the feelings of the country, Seward promptly proceeded to inform the British Ambassador that Slidell and Mason would be released forthwith, and the next day Mason and Slidell were taken from Fort Warren to Provincetown and there put on a British sloop of war, just as a British war ship full of troops arrived at the mouth of the St. Lawrence river.

 

Joe Ryan


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About the author:
Joe Ryan is a Los Angeles trial lawyer who has traveled the route of the Army of Northern Virginia, from Richmond to Gettysburg several times.
 





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