| John C. Breckinridge, Kentucky Senator |
| Judgment Call: Judge Jack Tenner |
| Regiments That Stood In The Fire |
| Ballard’s Staff Ride at Bull Run |
|
I THE CONGRESS SUPPORTS THE PRESIDENT
By July 4, 1861, when the new Congress, dominated now by the Republican Party, came into session Abraham Lincoln’s gamble that his exercise of unconstitutional power would be sanctioned, paid off. The Republicans in both houses, controlling the agenda, swiftly passed a series of bills that put Lincoln’s war on a legal footing.
How large the space compared to the desks: they knew the chances of the future.
In one month these bills pass: The Allegiance bill The Tariff and War Tax bills The Insurrection and Sedition bill The Confiscation bill The Slaveholders’ Rebellion bill
In the course of the session, the Republican senators proposed a joint resolution designed to validate the President’s unconstitutional acts. What follows is the verbatim debate that took place in the Senate over the merits of the resolution. Despite the fact the Republicans held the majority; the resolution was tabled without a vote at the last minute of the session. One might compare the Senate’s performance here to that of Senate’s debate over the resolution to authorize the President to use force against Iraq, in 2003.
In the Senate of the United States Congress:
Thursday July 4 1861
Senators Present:
Mr. Wilson of Massachusetts (The Natick Cobbler) gave notice that he would introduce a bill to ratify and confirm certain acts of the President for the suppression of insurrection and rebellion.
Mr. Wilson introduced joint resolution (S.No.1) to approve and confirm certain acts of the President, for suppressing insurrection and rebellion; which was read twice by its title and ordered printed.
Mr. Wilson moved that the proposed resolution be referred to the Committee on Military Affairs (of which he was the newly installed chairman). The motion was agreed to.
Monday July 8
Mr. Wilson takes the floor to report back the resolution without amendment from the Committee on Military Affairs and Militia and states the Committee recommends its passage.
Mr. Polk of Missouri: “Let it lie over.”
The Vice President: “Let it lie over.”
Tuesday July 9
The Senators gave eulogies in honor of Stephen A Douglas whose death was reported.
Wednesday July 10
The Vice President: “The joint resolution (S.No. 1) to approve and confirm certain acts of the President will now be considered.”
The joint resolution was read as follows:
Whereas, since the adjournment of Congress, on the 4th of March last, a formidable insurrection in certain States of this Union has arrayed itself in armed hostility to the Government of the United States; and whereas the President did, under the extraordinary exigencies thus presented, exercise certain powers and adopt certain measures for the preservation of this Government—that is to say: First. He did, on the 15th of April, issue his proclamation calling upon the several states for seventy-five thousand men to suppress such insurrectionary combinations. Second. He did, on the 19th of April, issue a proclamation setting on foot a blockade of the ports within the (seceded) States. Third. He did, by order of April 27, authorize General Scott to suspend the writ of Habeas Corpus in the territory between Philadelphia and Washington. Fourth. He did on the 3rd of May, issue a proclamation calling into the U.S. service forty-two thousand volunteers, increasing the Regular Army by the addition of twenty-two thousand men. All of which proclamations and orders have been submitted to Congress. Now, therefore,
Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That all of the extraordinary acts, proclamations, and orders, heretofore mentioned, be, and the same are hereby, approved and declared in all respects legal and valid, to the same intent, and with the same effect, as if they had been issued and done under the previous express authority and direction of the Congress of the United States.
The Vice President: “The joint resolution is now before the Senate as in Committee of the Whole, and open to amendment.”
Mr. Polk of Missouri: “I prefer the matter go over until another day. I may desire to express some views in opposition to it. The President tells us also, that we are to have an opinion from the Attorney General that will bear on the matter.”
Mr. McDougall of California: “I came here to indorse the preliminary action of the Government. I hope that may be done, and that all our bills may pass without debate.”
Mr. Fessenden of Maine: “I have no objection to deferring the matter until tomorrow, by I shall oppose any further postponement after that.”
Mr. Wilson: “Here is a resolution plain and simple to the comprehension of every man, and I hope the Senate will consider this measure until it is ready to vote on it.”
Mr. Saulsbury of Delaware: “It would be hurrying us in the endorsement of every act that the Administration has done to require that we should now proceed to the discussion of the very grave questions of constitutional law involved in the consideration of this resolution.”
The motion to postpone was not agreed to.
Mr. Latham of California: “During my absence, I understand that Mr. Clark stated that the Committee on Military Affairs were unanimous in reporting it. Such was not the case. So far as the proclamation suspending the writ I have heard no reason for that extraordinary measure. I am not prepared to endorse blind fold everything the Government may do.”
Mr. Kennedy of Maryland: “I think there are grave considerations involved in this resolution, that I am not prepared to endorse. One or two of the propositions in it are calculated to establish a precedent that may be seized upon hereafter, under the plea of necessity, for gross and palpable aggressions upon the Constitution. . . . as for the suspension of the writ, I now say to the Senate and the country that I conceive it to have been without any necessity whatever, and without the warrant of the law itself.”
Mr. Wilson: “Everybody knows that these acts of the Administration were forced upon it by the condition of the country. The legislation of the country had not provided the necessary means, and the President took the responsibility, and I am sorry now that there should be any doubt or hesitation in legalizing by our votes the action of the Government, extorted from it in an emergency.”
Mr. King of New York: “I do not come here to criticize. I heartily concur in and approve of all that has been done, as I believe the people are ready to come forward and see the Government maintained, and that but one flag, and that the star-spangled banner, shall fly in the air of this country.” (Applause in the galleries)
Mr. Baker of Oregon: “Mr. President, We are legislating in the midst of a great (army) camp, and I move that the galleries be cleared upon any manifestation of expression.”
Mr. Hale: “As a great many of the audience are strangers, they may not be aware of our rules.”
The Vice President: “It comes under the rule where the presiding officer maintains order. If there is repetition, the galleries will be cleared and the doors closed.”
Mr. Kennedy: “I do not think that force applied by armies upon either side is the way to secure and maintain the Union. I agreed with the senators upon the floor, at the last session, who raised their voices against the adoption of such a policy of that sort. You will never reconstruct the Union with the sword. May I ask what necessity justified the suspension of the writ?
Mr. Wilson: “That there was a band of conspirators in the city of Baltimore, is a complete justification. There is no spot on this continent where there have been blacker traitors that in and about Baltimore.”
Mr. Kennedy: “Out of a vote of 75,000 at the recent election in Maryland, the Union majority approximated 20,000. Yet, on account of the clamor that has been made about secret associations, there has been an exercise of arbitrary power over the State of Maryland., without the slightest necessity, and, indeed, without the authority of law.”
Mr. Baker: “I approve, as a personal and political friend of the President, of every measure he has taken and I propose to ratify whatever needs ratification. I do know that the determined aggregated power of the whole people of this country—all its treasure, all its arms, all its blood, all its enthusiasm, kindled, concentrated, poured out in one mass of living valor upon the foe—will conquer.”
The joint resolution was ordered to be engrossed for a third reading, and was read a third time.
The Presiding Officer: “The question is on the passage of the joint resolution.”
Mr. Polk: “On that question I ask for the yeas and nays.”
The yeas and nays are ordered.
Mr. Polk: “I cannot consent to the provisions of the joint resolution. It has been said that the country is engaged in war. That is true, sir: There are more troops under arms today than there ever were before in this country during all its previous history. This has been brought about since the adjournment of the last Congress, indeed since April 15. The Constitution says that Congress shall be authorized to declare war; and yet, sir, Congress has not declared war. That war has been brought on by the President, of his own motion and of his own wrong; and under what circumstances?
Before the close of the last Congress, as early as January, secession was an accomplished fact. And yet the last Congress made no declaration of war. The last Congress passed no legislation calculated to carry on a war. The last Congress refused to pass bills having this direction, or having any purpose of coercion. Now, sir, how was this war brought on? It has been brought on by Lincoln. I quote Vattel: `This constitution is a vain phantom, and the best laws are useless, if they be not rigorously observed; to attack the constitution is a capital crime against society.’
“I cannot give my consent for acts which infringe the Constitution under which the President acts, and which he is sworn to preserve, protect and defend. I am one of those who believe that there is no necessity in peace or war that justifies a violation of the Constitution. I believe this constitution was made for war as well as peace. It provides in itself for a declaration of war, it provides how the declaration shall be made. And yet, sir, somehow, since the adjournment of Congress last, this war has been brought upon the country.
The Congress of the United States, as early as 1795, for the purpose of carrying out a plain provision of the Constitution, passed the act of that day. That act I have here. I call attention to the third section: `Provided always that whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall by proclamation, command the insurgents to disperse.’ The President then, proceeding under this law, issues a proclamation on April 15 calling out 75,000 men.
I think no such case as contemplated by this Act existed on or previous to April 15. The case contemplated by this Act is one where citizens in some locality of a State refuse to obey the laws. The law was intended to operate upon the individual citizen. It does not contemplate the case of a State, or of seven States, assuming, in their corporate capacity, to withdraw themselves from the Union. When a State assumes that attitude, and the Government attempts to enforce its laws, it is in effect and in fact a coercion of the State; and that proposition is the very proposition which was intended to be ignored and discarded by the framers of the Constitution, for it was presented and voted down repeatedly, in the different shapes in which it was offered, in the convention that adopted the Constitution.
I think, Mr. President, there is another point that ought to be noticed in regard to this proclamation of the President—the opening wedge to the strife in which the country is now thrown—and that is this: it is said that, upon the legality of calling out the militia, the President, by his proclamation, determines the whole question; that his proclamation is conclusive upon it. But, in my opinion, the President is not authorized to determine the case upon which, by the act, he may call out the militia. In other words, he cannot, by his proclamation, create an insurrection or a resistance to the laws, but when the case exists, that is to say, when there is in fact an insurrection, the President can determine whether the militia ought to be called out.
Still further, on the 3rd of May the President issued a proclamation calling for an increase in the Army and Navy. There is no law for it. None is pretended. The very proclamation, on the face of it, admits the fact that there is no law for the call. The Constitution gives the President no power to raise and support armies.
This resolution also admits that the President suspended the writ of habeas corpus. The King of England, monarch though he be, has no right to suspend the writ of habeas corpus. That power belongs exclusively to the Parliament; and our fathers have restricted the right of suspension, in the very grant of it, to the Congress. I know the President has indulged in an argument to show that the power given, by way of exception, to suspend the writ, may be exercised by the President. Sir, the Constitution has not made him the judge of whether he is justified in the exercise of such a power as that. The Constitution has not invested him with the power of determining the legality of his own acts. It has erected another tribunal to determine questions of this sort, and that tribunal has determined that the power belongs to the legislative department alone.
Here, Mr. President, I remark that the President has gone beyond the suspension of the writ and has imposed martial law. He has usurped the judicial power. He has usurped the war power.
I cannot, as an American senator, give my consent to approve and legalize these acts of the President. “
Mr. Wilson: “Will the Senator allow me to interrupt him a moment?” Mr. Polk: “Always.”
Mr. Wilson: “I propose to let this resolution go over until tomorrow morning, and let the Senator finish his speech tomorrow.”
Mr. Polk: “I will accede to that proposition.”
The motion was agreed to.
Thursday July 11
Instead of Mr. Polk, Mr. Powell of Kentucky took up the issue:
“Great God! Senators, can you legalize a violated and disrupted and broken Constitution? In my judgment, you cannot. If you do this on the plea of necessity, or because of the extraordinary times by which we are surrounded, let me tell you that you set a precedent most dangerous to the people of a free country. I had been of the opinion that liberty existed alone in the supremacy of the law. Demagogues may prate as they will; but there is no liberty save in the supremacy of the laws of your country; and if you allow the President to violate the laws of your country with impunity, let me tell you that your liberties are fast waning away.
The New York Times
The Government’s Holding Cell in 1861
Allow it in one case, and let some malicious tyrant—a Caesar or a Bonaparte—assume that office in future, and he will avail himself of this plea of necessity, and place around him an armed band of a million men, in violation of the law; and his minions and partisans and favorites will say, here is the precedent for it in the administration of President Abraham Lincoln, in the year 1861, when the whole Senate of the Nation, under their oath, indorsed that violation and infraction of the Constitution.
Senators, let me tell you that when you vote this resolution, you will not only infract the Constitution yourselves, by justifying and approving the action of the President, you will set an example most dangerous to a free people, and one that will be a step far towards the overthrow of our liberties.”
Mr. Baker: “I remind the Senator from Kentucky that there are fifty thousand men within five miles of this capitol, the Senate is within the hearing of hostile guns.
Mr. Breckinridge of Kentucky: “I believe the question now is on the passage of this joint resolution.”
Mr. Bayard: “I move to refer the resolution to the Committee on the Judiciary in order to take the sense of the Senate.”
Mr. Wilson: “I propose to let the resolution go over until tomorrow.”
Mr. Breckinridge of Kentucky: “I am content to make my remarks tomorrow.”
The resolution was ordered to go over.
Friday July 12
The matter of the resolution was not discussed.
Saturday July 13
The matter of the resolution was not discussed.
Monday July 15
Mr. Breckinridge: “Mr. President, I obtained the floor some days ago, to submit a few remarks, but have been indisposed. I shall be happy to take up the issue of the resolution tomorrow if you please.”
The motion was agreed to.
Tuesday July 16 (General McDowell’s army moves out from Alexandria)
The New York Times
Mr. Breckinridge: “I will express my reasons for opposing the resolution.
The resolution would seem, upon the face of it, to admit the acts of the President were not performed in obedience to the Constitution and the laws. If that be true, I should be glad to hear some reasons assigned by gentlemen showing the power of Congress, by joint resolution, to cure a breach of the Constitution or to indemnify the President against violations of the Constitution and the laws.
I deny, Mr. President, that one branch of this government can indemnify any other branch for a violation of the Constitution and the laws. To say that Congress can do this is to say that Congress may alter the Constitution in a manner not provided in the instrument. If a bare majority of the two Houses of Congress can, by resolution, make that constitutional which was unconstitutional, by the same authority it may confer upon the President in the future powers not granted by the Constitution. It appears to me, thus, that the principle involved in this resolution is utterly subversive of the Constitution, and contain the very essence of a Government without limitation of powers.
The President has established a blockade. By what authority has he done this? Where is the clause of the Constitution that authorized him? An attempt was made in the last Congress to confer the authority by bill. It did not pass. Congress refused to grant the authority by law in face of the fact that seven states had withdrawn from the Union. Will any senator say that the power exists, under the Constitution, upon the part of the President to establish a blockade? It is an incident of war, sir; it is the exercise of the war power; and the Constitution declares that Congress shall pass an act to declare war, or exercise that power.
It is proposed, sir, to approve and make valid the act of the President in enlisting men for three years. I ask you by what authority he has done this act? The power is not conferred in the Constitution; it has not been granted by law. It is, therefore, an unconstitutional and illegal act of executive power. The President, of his own will, has added immensely to the force of the regular Army. The Constitution says the Congress shall raise armies and a law is on the books which limits the size of the army.
This resolution proposes to ratify the President’s suspension of the writ of habeas corpus. The right of every citizen to be arrested only by warrant, and his right to have his body brought before a judge, is a real right. It is a right of rights. It belongs to all. It is a right that has been struggled for, fought for, guarded by laws, and locked up in constitutions. It needs no elaborate argument to show that the President has no right to suspend the writ.
What part of the Constitution is it, sir, which confers upon the President the right to do this thing? Surely it is not that portion of the Constitution which declares that he shall take care that the laws be faithfully executed. All jurists agree that the act of suspension is a legislative act only.
A subordinate military officer in the city of Baltimore arrests a private citizen by military force without warrant of law, and confines him to a fortress. His friends seek a writ before the Chief Justice of the United States, and the reply is that he will not be delivered up by the military. The Chief Justice then gives an opinion which the President does not undertake to answer. You propose to make that valid. You propose to approve it, without making a defense of it on constitutional or legal grounds. What will be the effect? You invite him to do the like in the future; and the whole country will lie prostrate at the feet of the President when, in his opinion, the time shall have come to suspend the rights of individuals, and to have substituted military power for judicial authority.
The New York Times
You have, sir, practically, martial law established all over this land. The houses of private citizens are searched without warrant. The right of citizens to bear arms is made nugatory by their being taken from them without judicial process. The other day, in Baltimore, a military officer appointed a marshal for that city. What more authority did the officer have for doing that than he had to appoint a pastor of a congregation or a president for a bank? Has not the President, by one broad and sweeping act, laid his hands upon the private correspondence of the whole community?
Mr. President, we may pass this joint resolution to approve these acts, but we cannot make them valid in fact.
The Constitution declares that Congress alone shall have the power to `declare war.’ The President has made war. Congress shall “have power to raise armies.” The President has raised armies. The Constitution declares that no money shall be taken from the treasury except pursuant to appropriations made by Congress. The President has taken money from the treasury without appropriations made by law.
These rights and duties have been trampled under foot by military power, are being trampled now every day; and yet, so great upon the one side is the passion of the hour, and so astonishing the stupid amazement on the other, that we receive it as natural, as right, as of course. We are rushing from a constitutional government to a military despotism.
The Constitution says the freedom of speech shall not be abridged. Three days ago, in the city of St. Louis, a military officer, with four hundred soldiers—that was his warrant—went into a newspaper office, removed the types, and declared it should no longer be published, giving the reason that it was making reports injurious to the United States.
The President has concentrated in his hands the executive, legislative and judicial powers. What is the excuse? Necessity. I answer, there was no necessity. Was it necessary to preserve the President’s authority here, that the southern coast be blockaded? Was it necessary, until Congress should meet, that powers not conferred by the Constitution be assumed? Was there any necessity for overrunning the state of Missouri? Was it necessary for raising the largest armies ever assembled upon the continent? I deny that the President may violate the constitution on the plea of necessity. It substitutes the will of one man for a written constitution, especially where you make him the ultimate judge of that necessity, and his decision is not to be appealed from.
With such a beginning as that, what are we to expect in the future? Sir, when I see men imprisoned within hail of the Capitol, without a warrant, and the courts paralyzed, and Congress not rising to protest in indignant tones against it, my mind is filled with forebodings of the future.
Is the doctrine to obtain that the provisions of the Constitution are to be entirely subordinated to the idea of political unity? Shall the rallying cry be, `the Constitution and the Union,’ or are we prepared to say, `the Constitution is gone, but the Union survives?’ Let us carry on with a wink at violations of the instrument, and, sir, the people will soon begin to inquire what will become of their liberties at the end of the strife. The pregnant question, Mr. President, for us to decide is, whether the Constitution is to be respected in this struggle; whether we are to be called to follow the flag over the ruins of the Constitution? I believe that the whole tendency of the present proceedings is to establish a Government without limitations of powers, and to change radically our frame and character of Government.
I say that it never was in contemplation, by the framers that this Government should be maintained by military force to subjugate the different political communities that compose the States. It was declared by Madison, and by Hamilton that it was not in the competency of the Government to thus preserve it. Call it what you will it is a military subjugation. They are to march through Virginia, through the Carolinas, through all the Gulf States down to New Orleans, to occupy them, to subdue them.
Mr. Dixon and Mr. Baker interrupt to argue with Breckinridge
Mr. Breckinridge: “The substance of what they say is that the unity of the government shall survive not only the constitution, but all rights both of persons and property. The institutions of the Southern State existed before the Constitution was formed, and were intended to be secured by it. To declare that this war shall be prosecuted to the abolition of slavery is in principle to declare that it shall be prosecuted to the total subversion of all state authority, to the total overthrow of all rights.
I do not think that the people of the adhering states are willing to go into this strife with vast armies, make war, abolish institutions and political communities themselves, struggling simply for the idea of territorial integrity and national unity, finding, when they come out of the contest, the Constitution gone, and themselves at sea as to the character of the institutions with which they emerge from it. How strange it sounds that these men do these acts to preserve the Constitution of their country.
Mr. President, I regret to say that what may be called the more extreme violent and resolute men of the Republican organization appear to have control of the country’s destiny at this time, and all efforts are being made for the purpose of preventing peace, and of inflaming the public mind against the institutions of the South. Just this morning I saw a bill with the title `A Bill to suppress the slaveholder’s rebellion.’ In it there is a proposition to free all the slaves of the states that have withdrawn.”
Mr. Bingham: “I wish to ask the Senator if he denies that the present rebellion is a slaveholders’ rebellion.”
Mr. Breckinridge: “It is perfectly manifest to anyone who takes the time to educate himself that the opinion of the population, few of which are slaveowners, is almost unanimous. Allow me to ask the Senator a question. Does he approve the title of that bill?
Mr. Bingham: “I do approve the title.”
Mr. Breckinridge: “Is he in favor of freeing the slaves?
Mr. Bingham: “If it be a necessity.”
Mr. Breckinridge: “The bill is a congressional act of emancipation intended to arm the slaves. It is not only to confiscate the whole property, but it is to ferment a servile war.
Why argue the question further. I am done. I know that argument and appeal are all in vain. The Senate pants for action. We can only hope that Providence may preserve for us and for posterity, out of the wreck of a broken Union, the priceless principles of constitutional liberty. (Applause broke out in the galleries.)
Mr. Trumbull: “I rise to address myself to this noise in the galleries. I want the galleries cleared if this continues.”
The Republicans Answer
Mr. Lane: “The doctrine of States rights, as opposed to the rights of the Government, under the Constitution, is the most dangerous heresy, which underlies this whole controversy. Out of that idea, and one other idea, the present state of affairs has been brought upon the country. We are to teach them a lesson of respect for the North. We are to teach them a lesson of equality.
So much for the Senator’s objections to what the President has done. But his last argument, that an effort was made in the last session of Congress to give the President these powers, and that the Congress refused. That is true, and why? Because the vacant seats around us were then filled by traitors. For that reason and that reason alone we failed to confer this power upon the President.
Virginia today is as much a part of the Union as Indiana is, and the President has the right to march troops wherever he desires to march them.
Mr. Wilson: “The Senator from Delaware wishes to speak to the issue. Let us have it go over.”
Wednesday July 17 (McDowell’s army is approaching Centreville)
The matter of the resolution was not discussed.
Thursday July 18 (McDowell’s vanguard attacks the rebel defenses at Blackburn’s Ford)
The matter of the resolution was not discussed.
Saturday July 20
The matter of the resolution was not discussed.
The New York Times
Monday July 22
The matter of the resolution was not discussed.
Tuesday July 23
The matter of the resolution was not discussed.
Wednesday July 24
The matter of the resolution was not discussed.
Thursday July 25
The matter of the resolution was not discussed.
Saturday July 27
Mr. Johnson of Tennessee: “The problem now being solved is whether we can succeed in putting down traitors and treason, and in establishing the great fact that we have a government with the strength to maintain itself. . . .Traitors are getting to be so numerous now that I suppose treason has almost got respectable, but God willing, as I have heretofore waged war against traitors and treason, I intend to continue it to the end.
Applause rings out in the galleries, men shout.
The President pro tempore: “Order! Order!”
Mr. Johnson: “Mr. President, we are in the midst of a civil war; blood has been shed, life has been sacrificed. Traitors and rebels are standing with arms in their hands and it is said we must go forward and compromise with them. I say to them: `Ground your arms, then I will talk to you about compromise.’
If, under the Constitution, we cannot live as brothers, can we live quietly under a treaty, separated as enemies? The same causes will exist. Our geographical position will remain the same. If the same causes of division exist, how can we live in peace as aliens and enemies under a treaty?
But, Mr. President, I concur fully with the dislike expressed by the distinguished senator from Kentucky, Mr. Breckinridge, to a change in the form of our government. He seems apprehensive of a dictatorship. But the danger of dictatorship is on his side, not ours. Take that little petty Governor of Tennessee, Mr. Harris. He would be king! He is to be made king over the state that contains the bones of the immortal Jackson. He is king over the free people of Tennessee. Isham G. Harris to be my king. Yes, sir, my king! I know the man. I know his elements. Mr. President, he should not be my slave.”
Applause again rises from the galleries.
The President pro tempore: “Order! I will clear the galleries forthwith. The chair hopes to avoid clearing the galleries.
Mr. Johnson, turning to look at Breckinridge: “Let me ask you, sir, what right has any state lost under the Constitution? Is there a man, North or South, who can put his finger on any one single privilege, or single right, of which he has been deprived? Can he do it? Can he touch it? Can he see it? Can he feel it? No, sir; there is no one right that he has lost.
The Senator enumerates what he calls violations of the Constitution—the suspension of the writ of habeas corpus, the proclaiming of marital law, the raising of armies and the existing war; and then he asks: `Why all this?’ The answer is apparent to all. Who commenced the war? South Carolina withdrew from the Union, and, in the very act of withdrawing, made war on the United States. The Star of the West, on the 7th of January, laden simply with provisions to supply those starving men in Fort Sumter, attempted to enter the harbor, and was fired upon, and had to tack about. On the 11th of April General Beauregard had an interview with Major Anderson, and made a proposition to him to surrender. Major Anderson stated, in substance, that by the 15th of the month his supplies would give out. In possession of this fact, they commenced bombarding the fort. They knew that in three days Anderson would be compelled to surrender, but they wanted war.
Who then commenced the war? Who struck the first blow? Who violated the Constitution in the first place? Who trampled the law under foot, and violated the law morally and legally? Was it not South Carolina, in seceding? And yet you talk about the President having brought on the war by his own motion, when these facts are incontrovertible.
You say the President did wrong in increasing the Army. Do we not know that so soon as Fort Sumter surrendered they took up the line of march for Washington? Do not some of us here know that we did not sleep for fear the city would be taken before the rising sun?
Are we for the Government, or are we against it? That is the question. Taking all the facts into consideration, do we not see that invasion was intended? When the facts are all put together we see the scheme, and it is nothing more nor less than executing a program and yet Senators complain the President has suspended the writ, increased the army, and they ask, where was the necessity for all this? With your forts taken, your men fired upon, your ships attacked at sea, Senators talk about 75,000 men being called out. Mr. President, all this goes to show that our sympathies are with the one government and against the other. Admitting that there was a little stretch of power; admitting that the margin was pretty wide when the power was exercised, the question now comes, when you (the Senate) have got the power, when you are sitting here, are you willing to sustain the Government and give it the means to sustain itself? It is not worth while to talk about what has gone before. The question should be, Is it necessary now? If it is, it should not be withheld from the Government.
Senators talk about violating the Constitution and the laws. A great deal has been said about searches and seizures, and the right of protection of persons and papers. I reckon it is equally important to protect a Government from seizure as it is an individual. These rebellious states, after commencing this war, after violating the Constitution, seized our forts, our arsenals, our dockyards, our public buildings, our ships, and plundered the treasury of New Orleans. And yet Senators talk about violations of the Constitution. Does not this talk come with a beautiful grace from the Senators. We have seen instances where it might be indispensably necessary for the Government to exercise a power, and to assume a position that was not clearly legal and constitutional, in order to resist the entire overthrow and upturning of the Government and all our institutions.
But the President issued his proclamation. When did he issue it? After they had taken Fort Sumter. It showed that they intended to advance and that their object was to extend their power, to subjugate the other States, and to overthrow the constitution and the Government. I do not think there was a very great wrong done here.
Is the mere defeat of one man, and the election of another, according to the Constitution, sufficient cause to break up this Government? On the 4th of March we had a majority in this chamber of six in opposition to the President’s party. Where, then, is there even a pretext for breaking up the Government? Does not everyone know Mr. Lincoln could not even have made up his cabinet without the consent of a majority of the Senate? Do we not know he could not have sent one minister abroad without the majority’s consent? With all these facts staring them in the face, where is the pretense for breaking up the Government?
We are resisting usurpation and oppression. We will triumph; we must triumph. Right is with us. Yes, we must triumph. Though sometimes I cannot see my way clear when my facts give out, when my reason fails me, I draw largely upon my faith. My faith is strong that a thing so monstrously wrong as this rebellion is, cannot triumph. Can we submit to it? Can bleeding justice submit to it? Is the Senate prepared to give up the graves of Washington and Jackson, to be encircled and governed and controlled by a combination of traitors and rebels? I say let the battle go on—it is freedom’s cause—until the stars and stripes shall be unfurled at every crossroad, and from every house top.
I will close. Although the Government has met with a little reverse within a short distance of this city, no one should be discouraged and no heart should be dismayed. It ought only to prove the necessity of bringing forth still more vigorously the power of the Government. Though your flag may have trailed in the dust, though a retreat may have been made, to purify the banner, I say let it be baptized in fire and bathed in the nation’s blood! The nation must be redeemed; it must be triumphant!
Mr. Hale: “I move the resolution be put by.
The President pro tempore: “It is moved that this joint resolution be postponed.”
The motion was agreed to.
Monday July 29
The matter of the resolution was not discussed.
Tuesday July 30
The President pro tempore: “The question is on the passage of the resolution. The yeas and nays are ordered.”
Mr. Pearce of Maryland: “Mr. President, before the votes are taken, I have a few words to say. “While I love the Union, while I desire that the Union be preserved, I am not willing that a course of procedure shall be adopted in Maryland which I do not believe to be sanctioned by the Constitution. The suspension of the writ of habeas corpus by Lincoln is a violation of the principles of freedom which have been consecrated for centuries. Without habeas corpus no government can be called free. Any petty officer, under the President’s decree, can arrest a citizen of Maryland and cause him to be thrown into prison without judicial process. This is the very highest and the very worst tyranny.
Our fathers guarded against this when they put in the Constitution the amendment that no person shall be deprived of life, liberty or property without due process of law. They knew this was the great bulwark of personal liberty—the right of rights as the Senator from Kentucky calls it. Without it we have no rights. Who has the right to take it away? Why is it pretended that Lincoln can take it away? It is assumed that all provisions of the Constitution are inferior to that which imposes upon the President his oath of office, and that the power implied from that oath overrides all other powers and provisions with which it may come in conflict; and so this great zeal for the preservation of the Constitution makes it a thing of wax, to be twisted and molded at the discretion of Lincoln, instead of an inexorable fundamental law beyond the reach of President or Congress, and only to be altered by the people in prescribed form and mode.
Equally unfounded in law or fact is the allegation that the suspension of this constitutional privilege by the President was necessary. I know that never before in the history of this country has it been deemed necessary to suspend the habeas corpus even by Congress. Breaches of the Constitution, it is said, may be tolerated when a solemn duty is supposed to prompt a little straining of the Constitution for a purpose of high patriotic duty which disguises the danger of the example. But breaches of the Constitution once made, make more easy and soon its enemies, with the worst purposes, rush in to its destruction.
I shall, of course, not vote for the joint resolution, because I believe that, if these things which have been done by Lincoln are legal, there is no necessity for Congress to undertake to validate or ratify them; and, if they are illegal and unconstitutional, no power of Congress can give them any authority whatsoever. Congress may pass a bill indemnifying an officer who violates the law by paying expenses; but it cannot make an illegal and unconstitutional thing legal by a declaration that it is so. That is impossible.”
Mr. McDougall: “Mr. President—
Mr. Fessenden of Maine: “I move that further consideration of the resolution be postponed.”
Mr. McDougall: “I addressed the chair.”
Mr. Fessenden: “I was recognized by the chair.”
Mr. McDougall: “I want the floor.”
Mr. Fessenden: “It is important we move on to other business.”
Mr. McDougall: “I do not want to interfere with the course of business.”
The motion to postpone was agreed to.
Let me be distinctly understood on that point. I justify the President in the exercise of the authority which he has used upon the great principle of self-defense. Here was a rebellion aiming at the overthrow of the Government, a blow was about to be struck at the heart and soul of the Republic; and unless warded off, it would have destroyed the Government. Under this circumstance I justify and sustain the Government in doing whatever was necessary to preserve it till Congress convened.”
Mr. McDougall: “Mr. President, it seems to me that the preliminary question is, was there, at the time of the exercise of the power, war or not? There is no room for argument on this question. We have a war. Then, Mr. President, we have a war, and there is a law of war. It was never set down in any statute book. It is, and always has been, the law of necessity. It supercedes the laws organized for administering affairs in times of peace, and may absolutely supercede them. The right of the writ of habeas corpus is one of those laws that has no relation to this rebellion. I hope the vote on the resolution will not be postponed indefinitely.”
Wednesday July 31
The matter of the resolution was not discussed.
Thursday August 1
Mr. Breckinridge interjected: “If the Constitution is really to be put aside, if the laws of war are to govern, why not act upon that practically? I do not hold that the clause of the Constitution which authorizes Congress to declare war, applies to any internal difficulties. I do not believe it applies to any of the political communities, bound together under the Constitution, in political association. I regard it as applying to external enemies. Nor do I believe that the Constitution ever contemplated the preservation of the Union of these States by one half the States warring on the other half. The Constitution details particularly how military force shall be employed, and it can be employed only in aid of the civil tribunals. If there are no civil tribunals, if there is no mode by which the laws of the United States may be enforced in the manner prescribed by the Constitution, what follows? The remaining States may, if they choose, make war, but they do it outside the Constitution; and the Federal system does not provide for the case. It does provide for putting down insurrections, illegal uprisings of individuals, but it does not provide, in my opinion, either in its spirit or its terms, for raising armies by one half of the political communities that compose one Confederacy, for the purpose of subjugating the other half; and the very fact that it does not, is shown by the fact that you have to avow on the floor of the Senate the necessity for putting the Constitution aside, and conducting the whole contest without regard to it, and in obedience solely to the laws of war.
I have said, sir, that we are on the wrong track. Nothing but ruin, utter ruin, to the North, to the South, to the East, to the West, will follow the prosecution of this contest. You may look forward to innumerable armies, to countless treasures. If you are successful in ravaging the South, what on earth will you have accomplished? Are you not satisfied that, to accomplish your objective, you must conquer, ay, to exterminate, ten millions of people? Do you not know it? Does not everybody know it? Does not the world know it?
War is separation. War is disunion. Eternal and final disunion. I will not go on. I see the sneers by the gentlemen from New England, but let the future determine who was right and who was wrong. We are making our record here. I, my humble one, under the sneers and scowls of nearly all who surround me, giving my votes, and uttering my utterances according to my convictions. The time will come, Senators, when history will put her final seal upon these proceedings and if my name shall be recorded here, I am willing to abide, fearlessly, her final judgment.”
Mr. Baker replies: “Sir, how can we retreat? How can we make peace? Upon what terms? What is your boundary line? Where the end of the principles we will have to give up? What of past glories? What of future hopes? Shall we sink into the insignificance of the grave—a degraded, defeated, emasculated people, frightened by the results of one battle, and scared at the visions raised by the imagination of the Senator from Kentucky on this floor? No sir; a thousand times, no sir! We will rally the people! They will pour forth their treasure, their money, their men, without stint, without measure. The most peaceable man in this Senate may stamp his foot upon the floor and armed legions will spring forth. Shall one battle determine the fate of an empire, or a dozen? The loss of a thousand men or ten thousand? $100 million or $500 million? In ten years of peace we can restore them all. If we have the Union the path of the country will be toward greatness and glory which would be ours today, if it had not been for the treason which the Senator from Kentucky too often seeks to apologize.”
Mr. Breckinridge: “I have never held that a State or a number of States have a right without cause to break the compact of the Constitution. But what I mean to say is that you cannot then undertake to make war in the name of the Constitution. In my opinion they are out. You may conquer them, but do not attempt to do it under false pretenses. Hence the Senator and I start from entirely different standpoints and his pretended replies are no reply at all.
The Senator asks me what would you have us do? I would have us stop the war. We can do it. There is no necessity to continue the war. I fear constitutional liberty will find its grave in it. The Senator is mistaken to think we can unite these States by war. He is mistaken to think 20 millions on his side can subjugate ten millions on the other; or, if it is done that the Constitution as our fathers made it can be restored. You will have to govern States as territory, or, as the Senator from Vermont has said, `those rebellious provinces’ in his speech today.
The Senator asked if a senator of Rome had uttered these things in a war with Carthage, how would he have been treated? I would have said, `Let Carthage live and let Rome live, each pursuing its own course of policy and civilization.’
The Senator says that these opinions which I have thus expressed, are but brilliant treason; and that it is a tribute to the character of our institutions that I am allowed to utter them on this floor. Mr. President, if I am uttering treason I am unaware of it. I am speaking what I believe to be for the good of my country. If I am speaking it I am speaking it in my place in the Senate. By whose indulgence am I speaking? Not by any man’s indulgence. I am speaking by the guarantees of the Constitution which seems now to be so little respected. And sir, when he asked what was to be done with a Roman senator who had uttered such words, a certain Senator (Charles Sumner of Massachusetts) on this floor, whose courage has much risen of late, replied in audible tones, `he would have been hurled from the Tarpeian rock.’ Sir, if ever we find an American Tarpeian rock, and a suitable victim is to be selected, the people will turn, not to me, but to that Senator who, according to the measure of his intellect and his heart, has been the chief author of the public misfortunes. He, and men like him, have brought the country to this pass. I rely with the just indignation I ought to feel at such an insult offered on the floor of the Senate Chamber to a Senator who is speaking in his place.
Mr. President, I shall no longer detain the Senate. My opinions are my own. I repeat what I uttered the other day, that if the Commonwealth of Kentucky, instead of being neutral in this unfortunate struggle, shall throw her energies into the strife and approve the conduct and policy of the Government in what I believe to be a war of subjugation, she will be represented by some other man on the floor of this Senate.”
Friday August 2
The New York Times Mistates the Fact
Mr. Trumbull: “I ask for the yeas and nays on the question of taking up the joint resolution.”
The yeas and nays were ordered.
Mr. Trumbull: “My objection to taking up this resolution I will state in a word. This resolution proposes to declare legal the acts which have been done by the President in the recess of Congress. Will our declaration make them legal? Will it make them more so if they were unconstitutional and void? I am willing to give the necessary power to the President to suppress this rebellion; but I am not willing to say that the President has unlimited power and can do what he pleases, after Congress meets. I am willing to excuse him for all he has done, and to sustain him in all he has done; but if you propose to pass a resolution approving the exercise of powers for which you may be unable to find in strict law the warrant, it seems to be it would be a strange proceeding. I think we had better let this resolution lie.
Mr. Morrill: “I do not think the resolution important. I believe what the President has done is constitutional. It does not need to be validated, ratified. He has not transcended the powers which are necessarily, logically deductible from the powers conferred upon him by the Constitution and for this reason I am opposed to taking up the resolution at this time.”
Mr. Polk: “It seems to me a marvelous change has come over the opinions of some Senators in regard to this resolution. It was about the first business that was called, the question was on its passage, when I rose, stating that I had some views that I desired to express. Mr. Breckinridge then made a motion to postpone the matter one day, but his motion was voted down almost unanimously by the Senate. Now, when the Senator from Massachusetts moves to take up the resolution for the purpose of having action on it, it is to be postponed again. The Senator from Maine thinks it does not require any action at all”
Mr. Morrill: “I am ready to express my views.”
Mr. Breckinridge: “Mr. President—“
The President pro tempore: “The question is on the motion of the Senator from Massachusetts to take up the joint resolution.”
Mr. Breckinridge: “The Senator from Maine has stated many times that he thinks the President has not violated the Constitution. All I have to say is that it will be a very great comfort to the President to be assured of that fact; for he himself has been under the impression that he has been transcending it; and, indeed, he admits it in his message, and puts it expressly upon the ground of a popular demand and what he deemed to be a public necessity. It has also been admitted by many senators on the other side of the aisle. I have not believed, all along, that the resolution was going to be voted by the Senate. I do not believe it now. My deliberate judgment is, that in some mode the Senate will avoid putting itself on record in favor of the principles contained in this resolution. I do not think there are many Senators who want their names to go upon history in favor of this resolution.”
The President pro tempore (At this time, Mr. Anthony of Rhode Island): “The Clerk will call the roll on the motion to take up this resolution for consideration.”
The question being taken by yeas and nays, resulted—yeas 28, nays 11
The President pro tempore: “The motion prevails, and the joint resolution is before the Senate, the question being on its passage. On this question the yeas and nays have been ordered, and the Clerk will proceed to call the roll.”
The Clerk called: “Mr. Anthony”
Mr. Collamer: “I take it the resolution is now open for amendment?”
The President pro tempore: “It is not open for amendment.”
Mr. Doolittle: “I move the resolution be referred to the Committee on the Judiciary.”
Mr. Breckinridge: “Has not the call of the roll been commenced, and has not some member answered to his name?”
The President pro tempore: “No answer has been given. The question is on the motion of the Senator from Wisconsin.”
Mr. Wilson: “I do not like to resist the motion, but I must confess my surprise at it. This resolution is a plain and simple proposition, there is no ambiguity about it. It is as clear as sunlight, as simple as anything can be. I shall vote against the reference.”
Mr. Doolittle: “A question of this importance ought not be pressed on the Senate until it has been considered by the Committee on the Judiciary.”
Mr. Breckinridge: “It was introduced at an early day, it was reviewed and reported on by the Committee on Military Affairs, it has been discussed. If we ever intend to vote on it now is the time.”
The President pro tempore: “The question is on the motion to refer the resolution to the Committee on the Judiciary.”
Mr. Polk: “I ask for the yeas and nays.”
The yeas and nays were ordered; and being taken, resulted—yeas 17, nays 23 The President pro tempore: “So the motion to refer does not prevail. The question recurs on the passage of the resolution.”
Mr. Sherman of Ohio: “I am going to vote for the resolution, and I am going to vote for it upon the assumption that the acts of the President recited in it were illegal, and not upon the assumption that they were legal and valid. I am willing to make them legal and valid.
They had conquered Fort Sumter. They were notified expressly that Major Anderson’s men had but a few days of supplies remaining and then would have to retire before starvation. They could not allow Anderson to retire. Why? Because if they had allowed that, retiring simply before hunger, they could not say he had been conquered by the forces of the Confederacy. Here were the threats, here the overt act. What would you have the President do? Would you, sir, would any man here, have had him fold his arms, and say, ‘I have no authority. I know the country is going to pieces, but I must be still; let things take their course. I cannot help it.’
The President issued a proclamation calling into service volunteers. It was clearly illegal. I am not satisfied it was necessary. I am inclined to think it was not. But these were not willful errors. I vote for the resolution because I would save the Republic.
Why, sir, I have heard that when a chasm opened in the Forum of Rome, it was said by the oracles that whatever was most precious in Rome, must go into it to close it; and a soldier, with his armor on, mounted his horse, and spurred him into the chasm; and I am told that the conscious earth closed over him. Sir, while your flag floats over yonder dome, let no man who loves his country ever forget that, in the year 1861, the President of the United States saw a horrid chasm opening in the Union of the States, and he did not hesitate a moment to plunge himself into the chasm. There are those who prefer to stand at the brink and throw shafts at him. I prefer to go down into the gulf with him, and share whatever peril is there.”
Mr. Thompson: “I am not able to vote for this resolution.
Mr. Simmons: “I am charged to make a report, and if this joint resolution can be set aside, I should like to present it.”
Mr. Charles Sumner of Massachusetts, for the first time speaks: “I hope we shall have a vote on the resolution.”
Mr. Clark: “Let us vote.”
Mr. Simmons: “I move the resolution be laid aside informally until I make this report.”
The President pro tempore: “That will be the sense of the Senate unless objected to.”
The Tariff Bill was then discussed.
Saturday August 3
The matter of the resolution was not discussed.
Monday August 5
The matter of the resolution was not discussed.
Tuesday August 6
The President pro tempore: “The question is on the motion for an executive session.”
Mr. Breckinridge: “Is not the motion of the Senator from Massachusetts, for the yeas and nays on the joint resolution, in order?”
The President pro tempore: “The Senator yielded the floor.”
Mr. Doolittle: “I have the floor.”
The President pro tempore: “Not if the Senator from Massachusetts claims that he did not yield the floor after making his motion.”
Mr. Wilson: “The motion is to take up the consideration of the joint resolution.”
Mr. Doolittle: “I move that the Senate proceed to executive business.”
Mr. Breckinridge: “I rise to a question of order, that that motion is not in order.”
Mr. Sherman: “I will remind the Senate that Senator Wilson agreed to give a vote on the resolution and that, on that suggestion, Senator Breckinridge waived the privilege he had yesterday to bring the motion up.”
Mr. Doolittle: “I will remind the Senator from Ohio that it is now about one hour to the adjournment of Congress, and we have important matters pending in executive session that must be disposed of, and it may take the whole time.”
The President pro tempore: “The question is on the motion to proceed to executive session.”
Mr. Breckinridge: “I call attention to the fact that the Senator from Wisconsin was exceedingly eager, at the beginning of the session, to deal in acts and not words, to pass bills and not to argue anything, and was a devoted friend, I believe, of this joint resolution, which now wanders about without any parent or sponsor, he is now anxious to give it the go-by. The Senator from Oregon, Mr. Baker, gave me credit for being a prophet. He said the other day, that my prediction that the Senate would never vote on the resolution was not likely to be fulfilled. I take it to be one gleam of sunshine in the midst of the gloom that surrounds us, that the Senate now recoils from it.”
Mr. Wade: “I hope we take a vote on this resolution. There was an implied promise we would vote on it.”
Mr. Doolittle: “The remark of the Senator from Kentucky requires a reply. My only point is that we have executive business to complete and the session is about to end.”
Shouts from Mr. Breckinridge and Mr. Powell—“Take up the resolution!”
The President pro tempore: “The Chair will put the question on the motion to proceed to executive business. It is not debatable.”
The yeas and nays were called, resulting in 20 yeas, 21 nos. So the Senate refused to go into executive session.
The President pro tempore: “So the question recurs on the motion of the Senator from Massachusetts that the Senate proceed to consider the joint resolution. And the yeas and nays are ordered.”
Mr. King: I do not understand the resolution. I think we need more time to consider the language.”
Mr. Wilson: “The language can be changed.”
Mr. Breckinridge: “This resolution is more familiar to the Senate than any other resolution. It was the earliest introduced. It was the pet measure of the majority here. It was put in just such shape as that majority thought was right. It was the outbreak of patriotic ardor with which the Senate assembled. They matured it; and before the Senate got cool, Senators expressed their purpose to vote for it. It has been up again and again. There it is. (pointing to the table in the well of the Senate where it laid) It has gone to the country. Let the Senate vote it down, or pass it.”
Mr. Dougall: “It is true this resolution was introduced in the Senate at an early day, and the Senate approved it. Our time has been occupied by the Opposition to the Government. We have been ready to pass this resolution at any day, but it has been postponed to accommodate Senators and now we come to the day of adjournment. The gentlemen from Kentucky and Missouri are responsible for the delay.”
Mr. Fessenden: “Mr. President, one thing is very obvious; and that is, that our friends on the other side of the Chamber are exceedingly anxious not to have this question voted on, but to have an opportunity to say that we were afraid to vote on it. They expect to get some advantage out of it. I am perfectly willing to let them have it, for my observation has been that nothing is made out of such trifles. I do not attach importance enough to it to be troubled about it. If the Senate chooses to vote on it, that’s fine, but there is no time for the House of Representatives to vote on it. There is no time to pass it there.
Besides, the Senator from Delaware, Mr. Bayard, I believe, had an argument to make on this resolution and is entitled to be heard. We all know that when that Senator makes an argument it is worth listening to It is not that we are not ready and willing to vote on the resolution but that the Senator is entitled to speak”
Mr. Polk: “I assume the Senator means to be accurate.”
Mr. Fessenden: “I do.”
Mr. Polk: “The argument the Senator from Delaware wished to make is on an different matter.”
Mr. Fessenden: “He claimed the right to make an argument on this resolution.”
Mr. Polk: “He already has argued on this resolution.”
Mr. Fessenden: “No sir, it has not been made to this day.
Mr. Polk: “That is what I just said.”
Mr. Fessenden: “The Senator from Delaware claimed to make another argument on this resolution.”
Mr. Polk: “That argument was not on this resolution, but a different matter entirely.
Mr. Fessenden: “There never has been a time when all senators have conceded that the debate was closed on this resolution.”
Mr. Dixon: “I ask the unanimous consent of the Senate to offer a resolution on the Audit and Control expenses of the Senate.”
Mr. Bingham: “I object.”
Mr. Dixon: “Does it require unanimous consent?”
The President pro tempore: “Yes, the question of the joint resolution is still before the Senate.”
Mr. Trumbull: “Mr. President, I am not willing that a vote should be taken, under the misapprehensions which seem to exist in the Chamber and the impression which will be practiced by it upon the country. The Senator from Kentucky has said several times that it is the pet project of this side of the Chamber, that it was brought forward at an early day, matured, and then there was in indisposition to vote on it. Now I desire to say, that there never was a moment that the resolution could have received my vote. It never was matured as a party measure—never. The Senator from Massachusetts, I believe, reported it from committee, and has urged it; but that it has been any `pet measure,’ or anything that anybody was bound to vote for, is an entire misapprehension.”
Mr. Collamer: “It was not reported from a committee.”
Mr. Trumbull: “It seems never to have been before a committee. It is an individual proposition brought in here. Now what authority is there to assume that this is a pet measure of any party (Lincoln’s party) in the country?”
Mr. Powell: “The resolution was reported from the Committee on Military Affairs (which Mr. Wilson chaired)”
Mr. Trumbull: “I am just informed that it was not reported from that committee, but was brought in by the Senator from Massachusetts on his individual responsibility.”
Mr. Wilson: “Let us have a vote.”
Mr. Trumbull: “Now, my friend is clamorous. He cannot keep still. I am not disposed to vote upon the resolution. And it is not going to pass in the shape it is in.”
Mr. King: “Will the Senator from Illinois (The Majority Leader) allow me to make a motion to go into executive session?”
Mr. Trumbull: “I will yield to my friend from New York, and I give way to the consideration of a motion to go into executive session.”
Mr. King: “I make that motion.”
The motion was agreed to; after some time spent the doors were reopened.
The Senate then considered in sequential order: a message from the President regarding bills signed; a message from the House, the passage of resolutions to require a new oath of allegiance; to authorize spending; to confiscate property used by rebels; to pay the volunteers; and to approve the publication of the Congressional Globe.
Then this appears in the transcript of the record: “Mr. Sherman objected to the consideration of the joint resolution; and it was laid over.”
Then the President pro tempore announced that the hour fixed for the adjournment of the Congress had arrived and the Senate adjourned, to reconvene in December. II Lincoln Forces a Battle
In May he had selected an obscure major named Irvin McDowell as the invasion army’s commander; elevating him to the rank of brigadier general in the Regular army, to the chagrin of General Scott. At the same time Lincoln appointed Robert C. Schenck, a lawyer and politician from Ohio, who had been one of his earliest supporters, to the rank of brigadier general of volunteers; and he raised a number of Regular army officers, all graduates of West Point, to the rank of colonel. Daniel C. Tyler, an 1827 West Point graduate, who had spent the last twenty years in civilian life, was also made a colonel. These officers, along with a German immigrant named Louis Blenker, formed the group of general officers who would command the brigades of the volunteer regiments in the war’s first general battle.
On June 29, 1861, as the volunteer regiments were going into camps around Alexandria, Lincoln ordered McDowell, over General Scott’s objections, to move them against the Confederate force that was standing on the defensive at Bull Run, with outposts at Centreville, Vienna, and Fairfax.
Lincoln’s motivation for doing this is plain: He has a small force occupying St. Louis, preparing to move on the Missouri state Capital at Jefferson City, then in the hands of rebels. He has George McClellan advancing to a little skirmish in the West Virginia Mountains. He has Robert Patterson advancing to a little skirmish in the Shenandoah Valley. He has Fort Monroe occupied and Baltimore and the Maryland state capital, Annapolis, under tight military control. Though by these moves he has certainly eliminated any serious threat to the security of Washington, as well as to the loyal states, he needs to accelerate the momentum of war, if he is to keep the people embroiled in the passions of war. He knows the enthusiasm of the volunteer troops that have flooded Washington is degenerating into malaise and boredom in the camps, that their three month term of enlistment is to expire by the end of July, and that if they go home to their towns and farms without bringing body bags with them, the hysterical fervor he created, by his tricking the Confederates into firing on Sumter, will dissipate and the political will of the people to wage war against the South will fade. He needs to sprinkle blood in the faces of the people, to hold them to the horrible task ahead, and that means there must be a general battle.
General Scott’s Plan Overruled
Winfield Scott was much opposed to fighting a battle within Virginia—he wanted to first blockade Southern ports and while the blockade was being put in place, take the time to train the volunteers and their officers in the school of the soldier. Severely pressured by Lincoln to get the invasion army into action, Scott tried hard to convince Lincoln to combine the force under McDowell with the force under Patterson, the two converging at or near Leesburg—a maneuver that would turn the Confederate position at Bull Run and thus induce the rebels to retreat behind the Rappahannock. Because this plan, if successful, would make a general battle unnecessary, eliminating the death toll Lincoln was looking for, and because Pennsylvania Governor Andrew Curtin was unwilling to allow Patterson’s force—composed entirely of Pennsylvanians—to uncover the Pennsylvania border, Lincoln rejected Scott’s plan out of hand.
McDowell Goes Along With Lincoln
Here is the essential military reality revealed: Lincoln’s force was indeed raw. It was not in fact an army but a crowd of civilians camping out of doors on a holiday. It was not capable of moving, left, right, forward or backward as one organism, controlled by one mind, reacting as one to that mind’s instruction instantly. Without such discipline as this, it could not be expected to stand stolid and unmoveable in the face of massed rifle and artillery fire and deliver.
Despite this hard reality, in a meeting with Lincoln and Scott on June 29, McDowell, knowing what Lincoln wanted, proposed to advance with 35,000 men directly upon Bull Run. Lincoln wanted the army to move no later than July 8, he wanted to impress the incoming congressmen, who were about to judge his actions, with the fact that a bloody battle would be happening quickly. At this, McDowell objected to his own plan: He wanted more time “because the men were so green.” Lincoln scoffed: “The rebels are just as green.” True, McDowell no doubt thought, but all they have to do is stand in one place and fight, while ours have to move to the attack.
The Union Order of Battle
Upon returning to the Lee mansion at Arlington from the meeting with Lincoln, Irvin McDowell proceeded to organize the volunteer regiments into eleven brigades and four divisions. The largest of the divisions was made up of four brigades and three artillery batteries and commanded by Daniel Tyler, the oldest West Pointer among the officers Lincoln had promoted to fill the general officer slots, but the least experienced in military affairs.
Why Tyler was given this slot, the evidence does not say. Born in 1799, he was sixty-two in 1861. A graduate of the West Point class of 1819, he resigned his commission in 1834, and thus saw no action in the War with Mexico and never managed so much as a platoon in battle. From 1834 to 1861, Tyler engaged in the management of businesses in several states, including Alabama where his remains are buried. Despite the complete lack of military experience in handling men in battle, McDowell would assign Tyler the most important position in his order of battle. It is true that three of Tyler’s four brigades—Sherman’s, Keyes’s, and Richardson’s—were led by young West Point-trained officers who had seen action during the Mexican War, but these officers would require clear direction from Tyler if they were to operate properly together as components of a division. The fourth brigadier in Tyler’s division was Robert Schenck, like Blenker a German immigrant, whose only credential to lead men in battle was the fact that he was an old political crony of Lincoln’s.
Daniel Tyler, Division Commander
Tyler’s Brigadiers
Of these five men, Tyler, Schenck, and Keyes would resign their commissions before the war ended: Tyler almost immediately after the battle of Bull Run; Schenck only after being severely wounded at Second Manassas. Keyes commanded a corps during McClellan’s campaign against Richmond; thereafter, until his resignation in 1864, he was left at Fort Monroe. Sherman went west after the Battle of Bull Run and teamed up with Grant to eventually win the war. Richardson would be killed at Antietam.
McDowell assigned the next largest division, composed of three brigades, to Samuel Heintzelman. An 1826 West Point graduate, Heintzelman’s duty posts as an infantryman took him to Michigan, Florida, Arizona and California. He saw action in the Seminole wars and in the Mexican War and he saw some action fighting Indians in Arizona. His three brigadiers were O.O. Howard, who would command the 11th Corps at Chancellorsville and Gettysburg, William Franklin who would command a corps in front of Richmond, in 1862, and at Antietam, then be sent as an outcast to Arkansas. Orlando Willcox would be captured by the enemy at Bull Run. Later he would command a division at Antietam and a corps at Fredericksburg before being shuffled off to Michigan. In 1895 he was awarded the Metal of Honor for his conduct at Bull Run, though it is unclear what he did there to merit it.
Samuel Heintzelman, Division Commander
Heintzelman’s Brigadiers
Command of McDowell’s third division, composed of two brigades, went to David Hunter, who, by 1861, was a close friend of Lincoln’s. Hunter did nothing extraordinary in the war, except issue an “Emancipation Proclamation” while on the coast of South Carolina, in 1862, (which Lincoln immediately rescinded) and burn the Virginia Military Institute, in Lexington, Virginia, to the ground in 1864. At Bull Run, his command quickly devolved to Andrew Porter, one of his brigadiers, when he was wounded in the face almost as soon as his division came into action the morning hours of July 21.
Andrew Porter, a West Point graduate and infantry officer in the Regular army, did nothing at Bull Run and he disappeared from field command shortly thereafter. He resigned his commission in April 1864 and went to Paris
Hunter’s second brigade was commanded by Ambrose Burnside who gained the position due to his connection to Rhode Island Governor Sprague. Burnside had long served as a general officer in the Rhode Island Militia and his brigade, including its attached artillery battery, was filled with Rhode Island volunteers. Burnside would become Lincoln’s favorite to command the Army of the Potomac after he became disenchanted with George McClellan. This caused a falling out between McClellan and Burnside, who had been close friends, which left Burnside without a command during the battle at Antietam. Replacing McClellan as army commander after Antietam, Burnside led the army to the disaster at Fredericksburg, in December 1862. In 1863 Burnside was in Tennessee; then, in 1865, he was back in Virginia operating the 9th Corps in cooperation with Meade’s army in Grant’s campaign against Lee.
Hunter’s Brigadiers
McDowell’s last division, also made up of two brigades, was under the command of Dixon Miles. A West Point graduate, Miles, an infantryman, had gained the rank of colonel by the time the war broke out, his experience as an officer being gained in the West. After Bull Run, he took command of the garrison at Harper’s Ferry and was killed there, in September 1862, while in the process of surrendering to Stonewall Jackson. Miles’s two brigades were commanded by Louis Blenker, a German national with a military reputation, and Thomas Davies. Blenker left the service in 1863 because of injuries received in battle and died shortly thereafter. Davies was sent west after Bull Run and spent the war in the backwaters.
Miles’s Brigadiers
Irvin McDowell ostensibly had yet another “division” under his command, but the evidence suggests that this is very doubtful. The regiments of this division were composed almost entirely of New Jerseyians and commanded by Theodore Runyon, a Yale graduate whose occupation was that of lawyer. Runyon had drafted the New Jersey Militia regulations for the Legislature in 1847 and, in reward, was made a brigadier general of the Militia. At Lincoln’s first call for troops, Runyon led four militia regiments to Washington. These men, all three month volunteers, built one of the forts that were constructed around Alexandria. At Lincoln’s second call, this time for three year men, four New Jersey regiments of volunteers arrived in Washington and were placed under Runyon’s command.
If one simply reads and relies upon what McDowell wrote in his movement order and, later, in his battle report, the impression is that when the army marched to Centreville and engaged the Confederates in battle, McDowell was personally responsible for ordering Runyon’s eight New Jersey regiments to remain closer to Alexandria than to Bull Run.This hardly makes any military sense however, and, therefore, the suspicion must arise that Lincoln refused to allow McDowell to take Runyon’s men with him. Lincoln knew his decision to force McDowell to engage in battle at Bull Run created risk that McDowell might be defeated, that the defeat might turn into a rout, given the “greenness” of the men, in which event, he thought, the newly constructed forts around Washington had better be fully manned. This apprehension remained with Lincoln as his first rule of risk management until Grant reached Petersburg four years later, and it was the major reason the war in the east lasted that long.
Runyon played no part in the action at Bull Run; after the battle he went home to New Jersey with the three month men and returned to his practice of law. But he certainly looked smart in uniform.
Lawyer Runyon With His Unused Horse Pistol And Sword
These general officers, with the exception of Runyon, would be responsible for planning the tactics of the battle, cooperating with each other in the execution, and guiding their green volunteers, numbering approximately 30,000, into the kill zone of the fire, where the side with staying power wins the day. With few exceptions they failed to act in concert and the day went to the defenders of Virginia.
The Confederate Order of Battle
One of the first of the great Confederate captains to leave United States service, he immediately was appointed by the Confederate Government to take command of the forces gathering at Charleston, South Carolina. He came away from that assignment with the status of “Hero of Sumter” and was sent by Jefferson Davis to Virginia, to take command of the Confederate force occupying Manassas Junction. After the battle of Bull Run, he would have a falling out with Davis and be sent to Tennessee; where as second-in-command to Albert Sidney Johnson he would assume command of the Confederate army on the second day of Shiloh and lead it in retreat to Corinth. He spent the remainder of the war in the western states, participating in important battles as corps and army commander.
Beauregard’s force of about 18,000 men was organized as brigades. His most experienced brigade was commanded by Milledge Bonham, a graduate of the University of South Carolina and a lawyer who practiced in Carolina until 1857 when he was elected to the United States Congress, where he served until December 1860. During his law career Bonham twice took leaves of absence, first to command the South Carolina Brigade in the Seminole wars and then to act as colonel of the 12th South Carolina Regiment in the war with Mexico. At the time of Sumter, Bonham commanded the artillery batteries on Morris Island. Soon after the fall of Sumter, he was sent with his brigade of South Carolina regiments to take command at Manassas Junction which command he relinquished to Beauregard in early July 1861. After Bull Run he returned to South Carolina and became its governor during the remainder of the war, returning to the field to lead South Carolina troops when Sherman’s army invaded its borders.
Beauregard’s seven remaining brigades were commanded by West Point graduates: Richard S. Ewell, who would become a corps commander and lead the van of the Army of Northern Virginia to Gettysburg; D.R. Jones who would command a division at Second Manassas and Antietam; James Longstreet who would become, along with Stonewall Jackson, one of Lee’s wing commanders but, unlike Stonewall, think himself Lee’s equal; Jubal Early who would rise to corps command and bring Confederate troops closer to Washington than anyone; Philip St. George Cocke and Theophilus Holmes who would sink quickly into oblivion; and Nathan Evans whose tactical decision at Bull Run was a major factor in McDowell failing to overrun the Confederate position on the Henry Hill.
Joe Johnston in the Shenandoah Valley
Joe Johnston, previously Quartermaster General of the United States Army, and the highest ranking officer to resign his commission and go with the South, was operating in the lower Shenandoah Valley with four brigades which would carry the brunt of the active defense of the Confederate position at Bull Run. The brigades were commanded by Barnard Bee; he would be mortally wounded in action at Bull Run; Francis Bartow; he would be killed in action at Bull Run. Thomas J. Jackson and Arnold Elzely commanded the remaining brigades. JEB Stuart commanded the 1st Virginia Cavalry; he would play a minor role in the battle of Bull Run.
McDowell’s Army Moves on Centreville
The distance between Alexandria and Centreville is about twenty miles. It took McDowell’s army three days to march this distance. On July 16 the army began marching in four columns: Heintzelman marched along the Orange & Alexandria Railroad to Fairfax Station, with the plan being to swing off and cross the Occoquan River and move toward Brentsville—McDowell’s supposed initial idea, although more likely than not it was Scott’s, being to turn the rebel right flank and threaten to get on the railroad behind them.
Dixon Miles marched on the Little River Turnpike (the road between Adlie and Fairfax), turning onto the Old Braddock Road, heading for Centreville where McDowell mean to concentrate his columns.
Hunter followed Miles on the turnpike and, as Miles turned
off, continued on to Vienna and then to Germantown
Ahead of Hunter’s men was Tyler’s division which arrived at
Centreville,
Centreville Then
Centreville Now
Centreville Ridge Today
Pursuant to McDowell’s marching order, Tyler moved along the ridge that runs north and south through Centreville and came onto the road leading to Blackburn’s Ford on Bull Run, several miles in front of Manassas Junction, the key to the Confederate position. Without control of Manassas Junction the Confederates could not maintain themselves at Bull Run.
The Affair at Blackburn’s Ford
Tyler and Richardson, with two companies of infantry and some cavalry, rode together toward Blackburn’s ford. From the Centreville ridge, between Cub and Rocky Runs, the two generals looked over the field that stretches about a mile down to the ford, and saw beyond the thick strips of woods that cover Bull Run’s banks more fields stretching away to the west on the other side. Despite McDowell’s written order not to bring on an engagement, Tyler decided to investigate the enemy’s strength and ordered Richardson to bring up his brigade and send it down the hill into the woods.
Some time was spent in bringing up from the column the 1st Massachusetts and 2nd Michigan regiments. Once they reached the crest, skirmishers were deployed and the regiments proceeded, in company formations, to go down the hill; as they advanced, Richardson put two 20-pounder rifled Parrott guns into action, throwing shells over the little stream valley and into the woods and fields on the other side. Under this fire, the Union skirmishers, followed by the body of the regiments in line of battle, entered the woods and immediately were swept by rifle fire from the rebel infantrymen holding position deeper in the woods.
Blackburn’s Ford Today
Blackburn’s Ford Then
The fire fight intensified—the minutes passing into an hour—until the Massachusetts and Michigan men, unable to stand the fire, began falling back from the woods. Richardson at this point, with Tyler’s urging, brought forward the 12th New York Regiment and ordered it to charge the rebels holding the stream bank woods. The New Yorkers ran down the hill and went into the woods. They were stopped ten yards in by dense volleys of rebel rifle fire. Remaining only long enough to fire a few rounds, the New Yorkers pulled back, their casualties five killed, nineteen wounded. Soon after this, a battery of the 5th U.S. Artillery, captained by Romeyn Ayres, arrived from Sherman’s brigade and went into action along the ridge. For an hour this battery exchanged cannon shots with a battery from the Washington Artillery, manned by Louisianaians on the other side of Bull Run, with little effect, and the engagement ended.
McDowell Changes The Game Plan
As Tyler was marching his division back to Centreville, leaving Sherman’s brigade across the road in rear, McDowell was riding with Heintzelman and a company of cavalry through the countryside to the southeast, reconnoitering the roads leading across the lower Occoquan River and toward the Orange & Alexandria Railroad where it crosses Broad Run—at least that is what he later reported he had been doing, but this is doubtful.
In the run-up to Lincoln’s invasion army moving westward from Alexandria, Winfield Scott and McDowell had seemed to agree that the army would attempt to turn the rebel right by way of crossing the Occoquan River and moving on Brentsville.
Occoquan to Brentsville (2011)
Occoquan to Brentsville (1861)
From about Fairfax Station, on the Orange & Alexandria Railroad, it is five miles to the crossing of the Occoquan at Wolf Run Shoals. From there it is another 13 miles to Brentsville and three miles farther west from Brentsville to intersect the Orange & Alexandria Railroad track—a total distance of about 20 miles.
The obvious thing to do, here, was for McDowell to divide the army into wings, one wing threatening to get across the railroad from the direction of Brentsville, while the other wing attacked the rebel position at Blackburn’s. But, given the fact that Lincoln’s “green” infantry took almost three full days to march from Alexandria to Centreville using good turnpike roads, it was hardly rational for a general in McDowell’s circumstances to think it possible to march the same force, in substantially less time, the same distance over wagon roads that require the crossing of the Occoquan at least once, if not twice. This meant that the enemy would have ample time to either block the passage of the Occoquan or interdict the Union column by use of the several side roads, creating the possibility that it might get trapped in the woods and destroyed. Furthermore, there was the paramount fact that McDowell had no confidence that he had a commander he could trust to operate the turning column in coordination with his advancing the main body at the same time directly on Blackburn’s Ford.
McDowell is recorded as having intended the movement on Brentsville, but when his statements of what he intended are compared to the plain circumstances of the case, it is obvious he manufactured an excuse for disregarding the supposed agreed upon plan between Scott and himself.
McDowell first expressed his excuse, in a letter sent to Lt. Col. E.D. Townsend, Scott’s adjutant, on July 19th: “I found on examining the country that the roads were too narrow and crooked for so large a body to move over, and the distance around too great to admit of it with any safety. We would become entangled, and our carriages would block up the way. I was therefore forced to abandon the plan of turning the enemy’s right.” (italics added). McDowell repeated the essence of this excuse again, in December 1861, when he appeared before the Congressional Committee on the Conduct of the War. There, he said: “When I went to the left and found the country very much broken, the roads very narrow, I felt it would be hazardous to attempt to march 30,000 men by way of Wolf Run Shoals and Brentsville, as I had intended to do in the first place.”
Historians and civil war writers are apparently incapable in their writings, of measuring what men say they were thinking with what a reasonable person would probably be thinking under the circumstances shown by the evidence. In consequence, the story they generally offer is hardly the truth of history.
McDowell Spends July 19th Sitting On His Hands
Through the night of July 18, Irvin McDowell had much thinking to do. From the first moment Lincoln began pushing him to get the army out the camps and marching toward Bull Run, McDowell did not want to go, for the simple reason that the men were green.
A great many of them had arrived in Washington only a few weeks before the army moved. By the time they were formed into regiments, moved across the Potomac, and provided with horses and wagons to carry their equipment, Lincoln’s deadline had arrived and they had to move out with no military training and no drill beyond the rudiments of moving by four abreast in a column marching on a road, turning the head of the column left or right and halting.
Most of their officers had no military education, much less training, and were incapable of maintaining discipline in the ranks even during the preliminary movement that brought the columns to Centreville. Drill inculcates the recruit with the confidence that comes with knowing he is part of a machine, that if he stays in place, shoulder to shoulder, side by side, with the members of his company in line of battle and advances, changes front, and retreats together, the cohesiveness of the company will be reflected in the movements of the regiment, the brigade, and the division; and in that way the power of the army can be effectively brought to bear against the enemy. Without this discipline, there is nothing to hold the individual soldier and his comrades together when the stress of the kill zone begins to make gaps appear in the block of men he is a part of. For, under such circumstances, it is an elementary fact of military science that the men will not stand and deliver in one mass the volleys necessary to pressure the enemy to give way, much less to charge as one to the cannon’s mouth.
Lincoln had put McDowell in an impossible spot; as McDowell said before the Committee on the Conduct of the War: “The move could have been done by approaches, under the cover of a large force, entrenched so as to leave its lines protected, I mean half-sunk batteries, abatis, rifle pits etc. I would have built this line and the army would move behind it. Go forward a certain distance and make a parallel, then go forward again and so approach the enemy. And if we once got across Wolf Run Shoals and down to Brentsville, we have the Occoquan now on our side. If we get down to Brentsville the whole thing is ended.” But that meant, as it did with McClellan’s advance on Richmond, in 1862, that months would have to be consumed in the effort, and Lincoln expected, then as he did now, a battle in days.
So McDowell gave up the plan of turning the rebel right as well as the idea of |
Saturday
July 6
I think
the acts enumerated in the resolution were usurpations on the part of the
President; and I think that he should be rebuked by the vote of both Houses of
Congress.
We have
heard a great deal said in reference to the violation of the Constitution. The
Senator from Kentucky seems exceedingly sensitive about violations of the
Constitution. Sir, admitting that his apprehensions are well founded, it seems
to me that a violation of the Constitution for the preservation of the
Government is more tolerable than one for its destruction. In all these
complaints, in all these arraignments of the President, have you heard one word
said against the trampling under foot of law by the States, or the party now
making war upon the Government of the United States? Not one word, sir!
Mr.
Trumbull of Illinois interjects, while speaking to another matter: “The
present insurrection broke out during the recess of Congress, and the President
was compelled to provide as best he could for the preservation of the
Government until Congress should meet. It was the duty of the President—sworn
to take care that the laws be faithfully executed—to use all his constitutional
powers to preserve the Government from overthrow; and in doing this, I admit,
the President has been compelled to do, and has done, acts for which it may be
difficult to find, in the strict letter of the law, the authority; but, sir,
that I am ready to justify. This was necessary when Congress was not assembled;
but after Congress convenes, I say we shall be derelict in our duty if we leave
here without having regulated by law the action of the President.
With militia regiments pouring into Washington from the loyal states,
Lincoln moved, as soon as the people of Virginia ratified the Ordinance of
Secession, to occupy the right bank of the Potomac and build up his army of
invasion.
