Annual Wirz Memorial Service Andersonville Georgia

Article by James W. King, Commander of the Albany Georgia Camp of the Sons of the Confederate Veterans organization.  I assist the Americus SCV camp in promoting the Wirz memorial service. jkingantiquearms@bellsouth.net This article is scheduled to be printed in several Southwest Georgia newspapers. 
 
The Americus camp of the Sons of Confederate Veterans (SCV) organization will host  an annual Memorial Service for Civil War Andersonville Prison Commandant Capt. Henry Wirz on Sunday Nov. 9. The musical group, "A Joyful Noise," from Leesburg, will play and sing Southern Confederate songs and Gospel Hymns from 2 to 3PM followed by a formal memorial service. The public is invited to join SCV and pay tribute to a Southern hero and martyr.
 
The guest speaker will be Congressman Paul Broun from Athens.  Dr. Broun, a native of Athens, practiced medicine in Americus many years ago.  Confederate Reenactors "The Muckalee Guards" will provide Honor Guard duties during the Service.
 
When the War Between the States (Civil War) ended in 1865, Capt. Wirz was paroled.  However, shortly thereafter, he was arrested and carried to Washington, D.C. where he was placed in the Old Capitol Prison.  His trial before a military tribunal lasted several months, and included the perjured testimony of a Yankee soldier who was a deserter from a NY. Regiment who falsely claimed to be a great nephew of Lafayette of Revolutionary war fame.  For his false testimony against Capt. Wirz, he was given a position with the U.S. Dept. of the Interior.  It was later learned that this key witness whose perjured testimony contributed considerably to the conviction had never been at Andersonville. The vast Majority of defense witnesses for Capt. Wirz were not permitted to testify.  Many historians call his trial a farce and travesty of justice.  After the war, James Madison Page, a Michigan cavalryman, who had been a POW at Andersonville, wrote a book completely exonerating Wirz.
 
Capt. Wirz was found guilty of murdering 13 Union prisoners at Andersonville, although not a single body, nor even the name of any of the 13 was ever produced.  He was also falsely convicted on a second charge of conspiracy with high ranking members of the Confederate government to create the conditions that caused the high death rate. Wirz was made a scapegoat for the South.  On Nov. 10, 1865, Capt. Wirz was hanged in the yard of the Old Capitol Prison.  He declared his innocence to the end. The night before the hanging he was offered a commuted sentence if he would implicate Confederate President Jefferson Davis as a conspirator for Andersonville deaths. Wirz was an honorable man and would not lie to save his life.
 
After the hanging, the barbaric Yankees cut off his head and arms and other body parts, and exhibited them about the country. It took Capt. Wirz's attorney, Louis Schade, four years to collect enough body parts to have a Christian burial in Mount Olivet Cemetery in Washington.
   
The highly biased Northern version of Andersonville Civil War Prison (POW) Camp is well known however the true facts concerning Andersonville are not well known. The government of The Confederate States of America issued an order that a large POW prison should be constructed in early 1864 to alleviate crowding in existing camps in the South. The requirements were that it be constructed at a location further South away from the battle front and should be a healthy location with plenty of pure water, a running stream, close to grist and saw mills and if possible have shade trees. The location selected was in South Georgia in Sumter County and was officially named Camp Sumter although it became known as Andersonville. It was constructed to house 10,000 Union POW's however numbers increased to as high as 45,000 due to a policy by the Lincoln administration to discontinue exchanges.
 
The average death rate at other POW camps in the South was about 9% as compared to 12% for POW camps in the North where Confederate POW's were incarcerated.  In contrast the death rate at Andersonville was approximately 29% due to causes beyond the control of Confederate authorities and was unintentional. Also in contrast were the similar death rates at several Northern POW camps notably Elmira New York and Camp Douglas Chicago where the high death rates have been proven to be intentional.
 
It is a well known fact that the victor of a war writes the history from a biased perspective. Immediately after the end of the war absurd war crimes claims were made by Northern politicians, military authorities, newspapers, periodicals, and citizens that the decisions and conditions that caused the human disaster at Andersonville were intentional on the part of Confederate authorities. Demands for War Crimes Trials were made and the Commandant of Andersonville POW camp, Capt. Henry Wirz, was arrested, tried, and convicted in a farce trial by a military tribunal who had predetermined that a conviction would result. No War Crimes Charges against Northern POW commandants were ever made and no Northern POW camp has ever been enshrined by the U.S. Government as a memorial to Confederate POW's. Only Andersonville in the South has been enshrined and it has become a memorial to American POW's of all wars that have involved American veterans.
 
In defense of the Confederate government and Confederate prison officials in regards to Andersonville, a response was made in 1876, by the Southern Historical Society, consisting of 9 points that place the blame for deaths and suffering at Andersonville totally on Northern politicians and military authorities. Specifically President Lincoln, Sec. of War Stanton, Asst. Sec. of War Dana, and Gen. Grant shoulder the blame as noted in the following 9 points.

1. It is not denied that great suffering and mortality occurred but it was due to circumstances and conditions beyond CSA control.

2. If the death rate be adduced as "circumstantial evidence of barbarity" the rate of Confederate deaths was higher in Northern POW camps where there was an abundance of food, medicine, and shelter.

3. The Union POW's were given the same rations as Confederate guards and soldiers and equal treatment in hospitals as required by the CSA government and the death rate of CSA guards was the same as POW's.  The Northern Federal government did not have this humane policy.

4. The exchange of prisoners was refused by the North before the issue of black Union POW's became an issue.

5. The CSA government requested that Northern doctors and medicine be sent to treat  Northern POW's and the request was denied.

6. The CSA tried to buy supplies including bowls and other utensils to use in feeding the POW's. They offered to pay with cotton and gold but the offer was refused by the Lincoln administration.

7. The Federal Government under President Lincoln made medicine contraband causing suffering and death of Union POW's and all Southerners military and civilian.

8. Prior to the period of greatest mortality the CSA authorities offered to release the Andersonville POW's without exchange but the offer was not accepted by the Lincoln Administration who was told by CSA authorities "we cannot feed or care for them-just come get them". Sherman's barbaric war crimes in Georgia consisting of stealing, destroying, and burning made food and supplies even scarcer and increased suffering and mortality.

9. The Northern press was furnished lies and propaganda by Union Sec. and Asst Sec. of war Stanton and Dana claiming deliberate cruelties and war crimes by the South. The control of Northern POW camps was transferred by Stanton and Dana to vindictive partisan criminal elements and deliberate war crimes of cruelty, torture, and murder were committed against Confederate POW's as proven by a joint resolution of the U.S. Senate and House SR97.
 
In 1906 former Confederate General Stephen D. Lee charged the Sons of Confederate Veterans (SCV) organization with the duty to defend the honor of the South and the Confederate Soldier:

“To you, Sons of Confederate Veterans, we will commit the vindication of the Cause for which we fought.  To your strength will be given the defense of the Confederate soldier's good name, the guardianship of his history, the emulation of his virtues, the perpetuation of those principles which he loved and which you love also, and those ideals which made him glorious and which you also cherish.  Remember, it is your duty to see that the true history of the South is presented to future generations.”

DANVILLE FLAG OUTCOME "A VICTORY FOR COMMON SENSE OVER POLITICAL CORRECTNESS"

In a major victory for Americans of Confederate heritage, the City of Danville today squashed the attempts by The Danville Museum of Fine Arts and History to remove the Third National Flag of the Confederacy from its grounds at the historic Sutherlin mansion.

"This is a huge victory for common sense over political correctness," said Kelly Barrow, the Commander in Chief of the 30,000 member Sons of Confederate Veterans, a heritage organization made up of direct descendants of those who fought for the Confederate States of America.

"The Sutherlin Mansion is called the Last Capital of the Confederacy because Jefferson Davis and his Cabinet stayed there after Richmond fell in 1865," said Barrow. "That flag flies there as a very significant part of American history. What the museum was proposing was nothing less than an unthinking insult to the more than 70 million Americans whose ancestors fought for the Southern cause. It amounts to an attempt to whitewash American and Virginian history."

In a brief statement, the City of Danville acknowledged that Virginia law prevents the removal of the flag. Attorney Fred Taylor, who represented individual citizens of Danville, said, "I am pleased to hear of the decision by the Danville City Council. Virginia state law is clear regarding the protection of the monument and the memorial, and it is reassuring to see the City Council honor its original 7994 agreement with the Heritage Preservation Association and the citizens of Danville, avoiding what could have been a needless and costly legal battle."

Ben L. Jones
Chief of Heritage Operations
Sons of Confederate Veterans

A TRULY HISTORIC DAY, A STIRRING TRIBUTE TO A BEAUTIFUL SOUL, AND A MEDIA BLACKOUT

By Ben Jones, SCV Chief of Heritage Operations 

This past Saturday, at the Hillcrest Cemetery in Monroe, North Carolina a memorial service of major historic importance took place. The ashes of Mrs. Mattie Clyburn Rice were placed next to the grave of her father, Weary Clyburn. Mr. Clyburn was born in 1841 and was a combatant in the American Civil War and passed away in 1932. His daughter, Mrs. Rice, passed on September 1st of this year, two weeks before what would have been her 91st birthday. The service was to remember "Miss Mattie" and to dedicate to her a permanent memorial.

The memorial service was a day of tears and laughter, and a day of reflection, pageantry, music, and praise. It was a memorable occasion for a beautiful soul.

Between them, the lives of father and daughter encompassed the greater part of the American Experience. When Weary Clyburn was born, there were still many alive who had fought in the American Revolution. When his daughter died, the space age had taken men to the moon and beyond, and the digital revolution had enabled the entire planet to instantly connect. During this Sesquicentennial of the War Between the States, one would have expected such a memorial tribute as this to gain the attention of the major television networks, the cable news networks, and the major regional and national newspapers.

Certainly serious historians of the era would be there to mark the occasion, for

this wonderful lady had heard of the war first hand from the stories of her beloved father, and she had honored his heritage with devotion and courage.

But the event took place in a virtual blackout of media coverage. There were, to my knowledge, two reporters from the Monroe area there, but nothing beyond that. The nation did not get to hear about "Miss Mattie" and her devotion to her father's memory. The historic importance of this family went virtually unnoticed by the media.

There was, however, an Associated Press story about the Memorial on the day before the service. And that nationally distributed story is indicative of the "mainstream media's" approach to what can only be called "political correctness". Nothing else can explain the "hatchet job" on the passing of this beautiful soul. For you see, Weary Clyburn was a slave, and he served for the Confederacy, and he received a pension for his service to the Southern Army. But the story told to the nation by the Associated Press says that he was surely forced into service by his master.

And that, according to Weary and his daughter Mattie, is a lie.

According to "Miss Mattie", her father went into the war with his friend, Frank Weary, and served as his bodyguard for four years. In one battle, Weary saved the wounded Frank's life by carrying him over his shoulders to safety. A granddaughter of Frank Weary spoke heartfelt thanks for this act to Weary's descendants at the Memorial Service.

For that Associated Press story, the reporter, Martha Waggoner, interviewed a man identified as a "blogger", a man who is a high school teacher from New Jersey who lives in Massachusetts. Claiming to be a "historian", this blogger has said that Mrs. Rice had promulgated a hoax, and that it was not true that men like Weary Clyburn had supported the Confederacy because Weary Clyburn was a slave. Never mind what the man Weary Clyburn himself said. The blogger, a man named Kevin Levin, thinks he knows the minds of Southern people who lived in the 1840's better than they knew it. In choosing to interview a blogger who is best known as an avowed anti-Southern propagandist, the A.P. reporter has insulted the memory of Mrs. Rice and her father and brought great pain to her family and to the many friends who knew this wonderful lady.

Of course, the "reporter" did not bother to cover the actual event and talk to Mrs. Rice's children and grandchildren. She and her colleagues were nowhere in sight. She had "covered" the story with a phone call to a self-obsessed Massachusetts blogger.

It is an outrageous and disturbing piece of "reporting". How anyone could slander this father and daughter is beyond comprehension, but that is exactly what "reporter" Martha Waggoner and "blogger" Kevin Levin managed to do.

Ms. Waggoner could have easily contacted any number of serious, respected historians of the American Civil War in North Carolina. Instead she seemed to "cherry-pick" a blogger devoted to attacking Southern heritage and gave him the final word.

But we can speak up for Weary Clyburn and "Miss Mattie" just as she spoke up for us.

Please e-mail Ms. Waggoner at MWaggoner@ap.org and tell her politely that her story was clearly biased and insulting to the memory of Mattie Clyburn Rice and her family. Tell her, as nicely as possible, that she should apologize to every one of "Miss Mattie's" family members, and especially to the memory of Weary Clyburn and his indomitable daughter, Mattie Clyburn Rice.

A NEW GUARD STANDS AT THE MARIETTA CONFEDERATE CEMETERY

(Atlanta - October 13, 2014) The Georgia Division, Sons of Confederate Veterans is honored to announce the unveiling of a new Bronze Soldier Confederate Monument at the Marietta Confederate Cemetery where over 3,000 Confederate soldiers rest in peace. Georgia Division Adjutant Tim Pilgrim, who is heading up the project, stated, "This was a project made possible by the joint cooperation of the Marietta Confederate Cemetery Foundation and the local Sons of Confederate camps in the area. 

Pilgrim indicated that most of the funding for the new monument came from the Georgia Division's specialty tag funds and from donations by the local Sons of Confederate Veterans camp. "It's part of our on-going recognition of the 150th Anniversary of the War Between the States," said Pilgrim, "in honor of more than 3,000 Southern Heroes who rest in these hallowed grounds that made the ultimate sacrifice to protect their family and homes from an invading army."  

The Bronze Confederate Soldier is (5) five foot (10) ten inches tall in full military regalia and gear, holding his musket. He will be place atop a (5) five foot high granite pedestal centered in a new paver plaza. The octagon pavers will be true to historical period style with granite knee walls on three sides of the plaza. The engravings in front of the granite pedestal will include the Great Seal of the Confederate States of America with the Confederate motto of "Deo Vindice" -- Latin for "God is our Vindicator."  The East side will have the Marietta Confederate Cemetery Logo and the West side lists the (14) fourteen States that have Soldiers buried in the Marietta Confederate Cemetery.  

Wax mold for the casting of the new Bronze Confederate Soldier

Marietta Confederate Cemetery is the largest Confederate cemetery South of Richmond and is located at 395 Powder Springs St, Marietta, GA 30064. The Marietta Confederate Cemetery is one of the largest burial grounds for Confederate dead.

The City of Marietta and Friends of Brown Park will also be unveiling two new sections to the existing memorial walls. The new section will list 350 additional names of Confederate soldiers buried as "Unknowns" in the Confederate Cemetery. Brown Park now has four granite walls commemorating 1,150 Confederate soldiers buried in the adjacent Marietta Confederate Cemetery after two new memorial walls were installed recently.

The Bronze Confederate Soldier Monument as well as the two new memorial walls will be unveiled to the public at an unveiling ceremony this Sunday, October 19 at 1 p.m.

 

For more information about the Sons of Confederate Veterans or any of this year's planned events to commemorate the Sesquicentennial of the War, contact the Georgia SCV at 404-456-3393 or online at www.GeorgiaSCV.org    

Buchanan and Black – The Final Word on the Constitutionality of Secession

Kenneth Bachand

According to Buchanan biographer George Ticknor Curtis, Among the Buchanan Papers of the Historical Society of Pennsylvania, in a box labeled "Buchanan Papers-Nahum Capen, Black, & Brewster," there is a paper in the handwriting of Attorney General Judge Jeremiah Black, dated November 17, 1860, and endorsed by President Buchanan, that lists certain questions propounded to him by the president in respect to the situation involving the Southern states. (Source: George Ticknor Curtis, Life of Buchanan, Fifteenth President of the United States, Vol. II, (Harper, 1883), p. 319) 

At that time, President Buchanan wrote,

“17 November, 1860. SIR, The excitement in the Southern States caused by the recent presidential election and by the previous expressions in the North of hostility to Southern people and their domestic institutions may produce in some places resistance to the laws of the Union. As I desire to be guided in this emergency solely by the Constitution, and as there are several important points obscure enough to need some exposition, I have to require your opinion in writing on the following questions:

1. In case of a conflict between the authorities of any State and those of the United States, can there be any doubt that the laws of the Federal Government, if constitutionally passed, are supreme?

2. What is the extent of my official power to collect the duties on imports at a port where the revenue laws are resisted by a force which drives the collector from the custom house?

3. What right have I to defend the public property (for instance, a fort, arsenal and navy yard), in case it should be assaulted?

4. What are the legal means at my disposal for executing those laws of the United States which are usually administered through the courts and their officers?

5. Can a military force be used for any purpose whatever under the Acts of 1795 and 1807, within the limits of a State where there are no Judges, marshal or other civil officers?

I will thank you to give this subject your early attention and let me have your opinion without loss of time.”

Judge Black's opinion bears the date November 20, 1860, one month to the day prior to South Carolina declaring independence from the United States. And ironically, although secession was being talked about everywhere from farmers in their fields to politicians in the houses of Congress, none of Buchanan’s five questions was focused specifically on that subject. So much of the opinion as includes the points which are specially controverted and criticised is here given—about one-half of the entire document.

(Source: Curtis, ibid., Pp. 319–324.  See also “Opinion of Judge Black, November 20, 1860,” James G. Blaine, Twenty Years of Congress: From Lincoln to Garfield, with a review of the events which led to the political revolution of 1860, Vol. I, (The Henry Bill Publishing Company, 1884), pp. 603–605; THE WORKS OF JAMES BUCHANAN, Comprising his Speeches, State Papers, and Private Correspondence Collected and Edited By JOHN BASSETT MOORE, Vol. XI, (Philadelphia & London, J. B. Lippincott Company, 1910), pp. 860–868, as found in the Dickinson College Digital Collection; and 9 Opinions of the Attorneys General, 517–526.)

The specific portions of the militia acts of 1795 and 1807 referred to by Judge Black follow here and precede his opinions.

The Militia Act of 1795:

An Act to provide for calling forth the Militia to execute the Laws of the Union, suppress insurrection and repel invasions, and to repeal the act now in force for those purposes.  [The act to be repealed being the Militia Act of 1792]

Be it enacted, &c., That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose to such officer or officers of the militia as he shall think proper. And, in case of an insurrection in any State against the Government thereof, it shall be lawful for the President of the United States, on application of the Legislature of such State, or of the Executive, (when the Legislature cannot be convened,) to call forth such number of the militia of any other State or States as may be applied for, as he may judge sufficient to suppress such insurrection.

Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such State, or of any other State or States, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.

The Militia Act of 1807:

ANNALS OF CONGRESS NINTH CONGRESS. SESS. II. CH. 39, 1807. Page 443 STATUTE II. March 3, 1807. CHAP. IX. - An Act authorizing the  employment of the land and naval forces of the United States, in cases of insurrections.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state, or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.

APPROVED, March 3, 1807. 

Judge Black’s opinion (unedited)

(Note: The paragraphs have been numbered to facilitate referencing in the notes that follow.)

“(1) I come now to the point in your letter which is probably of the greatest practical importance. By the Act of 1807 you may employ such parts of the land and naval forces as you may judge necessary for the purpose of causing the laws to be duly executed, in all cases where it is lawful to use the militia for the same purpose. By the Act of 1795 the militia may be called forth 'whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any State by combinations too powerful to be suppressed by the ordinary course of Judicial proceedings, or by the power vested in the marshals.' This imposes upon the President the sole responsibility of deciding whether the exigency has arisen which requires the use of military force, and in proportion to the magnitude of that responsibility will be his care not to overstep the limits of his legal and just authority.

(2) The laws referred to in the Act of 1795 are manifestly those which are administered by the judges, and executed by the ministerial officers of the courts for the punishment of crime against the United States, for the protection of rights claimed under the Federal Constitution and laws, and for the enforcement of such obligations as come within the cognizance of the Federal Judiciary. To compel obedience to these laws, the courts have authority to punish all who obstruct their regular administration, and the marshals and their deputies have the same powers as sheriffs and their deputies in the several States in executing the laws of the States. These are the ordinary means provided for the execution of the laws; and the whole spirit of our system is opposed to the employment of any other, except in cases of extreme necessity arising out of great and unusual combinations against them. Their agency must continue to be used until their incapacity to cope with the power opposed to them shall be plainly demonstrated. It is only upon clear evidence to that effect that a military force can be called into the field. Even then its operations must be purely defensive. It can suppress only such combinations as are found directly opposing the laws and obstructing the execution thereof. It can do no more than what might and ought to be done by a civil posse, if a civil posse could be raised large enough to meet the same opposition. On such occasions, especially, the military power must be kept in strict subordination to the civil authority, since it is only in aid of the latter that the former can act at all.

(3) But what if the feeling in any State against the United States should become so universal that the Federal officers themselves (including judges, district attorneys, and marshals) would be reached by the same influences, and resign their places? Of course, the first step would be to appoint others in their stead, if others could be got to serve. But in such an event, it is more than probable that great difficulty would be found in filling the offices. We can easily conceive how it might become altogether impossible. We are therefore obliged to consider what can be done in case we have no courts to issue judicial process, and no ministerial officers to execute it. In that event troops would certainly be out of place, and their use wholly illegal. If they are sent to aid the courts and marshals, there must be courts and marshals to be aided. Without the exercise of those functions which belong exclusively to the civil service, the laws cannot be executed in any event, no matter what may be the physical strength which the Government has at its command. Under such circumstances to send a military force into any State, with orders to act against the people, would be simply making war upon them.

(4) The existing laws put and keep the Federal Government strictly on the defensive. You can use force only to repel an assault on the public property and aid the Courts in the performance of their duty. If the means given you to collect the revenue and execute the other laws be insufficient for that purpose, Congress may extend and make them more effectual to those ends.

(5) If one of the States should declare her independence, your action cannot depend on the rightfulness of the cause upon which such declaration is based. Whether the retirement of the State from the Union be the exercise of a right reserved in the Constitution, or a revolutionary movement, it is certain that you have not in either case the authority to recognize her independence or to absolve her from her Federal obligations. Congress, or the other States in Convention assembled, must take such measures as may be necessary and proper. In such an event, I see no course for you but to go straight onward in the path you have hitherto trodden — that is, execute the laws to the extent of the defensive means placed in your hands, and act generally upon the assumption that the present constitutional relations between the States and the Federal Government continue to exist, until a new code of things shall be established either by law or force.

(6) Whether Congress has the constitutional right to make war against one or more States, and require the Executive of the Federal Government to carry it on by means of force to be drawn from the other States, is a question for Congress itself to consider. It must be admitted that no such power is expressly given; nor are there any words in the Constitution which imply it. Among the powers enumerated in Article 1, Section 8 is that 'to declare war, grant letters of marque and reprisal, and to make rules concerning captures on land and water.' This certainly means nothing more than the power to commence and carry on hostilities against the foreign enemies of the nation. Another clause in the same section gives Congress the power 'to provide for calling forth the militia,' and to use them within the limits of the State. But this power is so restricted by the words which immediately follow that it can be exercised only for one of the following purposes: To execute the laws of the Union; that is, to aid the Federal officers in the performance of their regular duties. To suppress insurrections against the State; but this is confined by Article 4, Section 4, to cases in which the State herself shall apply for assistance against her own people. To repel the invasion of a State by enemies who come from abroad to assail her in her own territory. All these provisions are made to protect the States, not to authorize an attack by one part of the country upon another; to preserve the peace, and not to plunge them into civil war. Our forefathers do not seem to have thought that war was calculated 'to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.' There was undoubtedly a strong and universal conviction among the men who framed and ratified the Constitution, that military force would not only be useless, but pernicious, as a means of holding the States together.

(7) If it be true that war cannot be declared, nor a system of general hostilities carried on by the Central Government against a State, then it seems to follow that an attempt to do so would be ipso facto an expulsion of such State from the Union. Being treated as an alien and an enemy, she would be compelled to act accordingly. And if Congress shall break up the present Union by unconstitutionally putting strife and enmity and armed hostility between different sections of the country, instead of the domestic tranquility which the Constitution was meant to insure, will not all the States be absolved from their Federal obligations? Is any portion of the people bound to contribute their money or their blood to carry on a contest like that?

(8) The right of the General Government to preserve itself in its whole constitutional vigor by repelling a direct and positive aggression upon its property or its officers cannot be denied. But this is a totally different thing from an offensive war to punish the people for the political misdeeds of their State Government, or to enforce an acknowledgment that the Government of the United States is supreme. The States are colleagues of one another, and if some of them shall conquer the rest, and hold them as subjugated provinces, it would totally destroy the whole theory upon which they are now connected.

(9) If this view of the subject be correct, as I think it is, then the Union must utterly perish at the moment when Congress shall arm one part of the people against another for any purpose beyond that of merely protecting the General Government in the exercise of its proper constitutional functions.

I am, very respectfully, yours, etc.,”

J. S. BLACK.

We may summarize Judge Black’s Arguments as follows:

1. The president must not overstep the limits of his legal and just authority. 

2. The operations of any military force must be purely defensive. 

3. To send a military force into any State to act against the people would be to make war upon them. 

4. The laws put the Federal Government strictly on the defensive, and force can be used only to repel an assault on public property. 

5. In the event of the secession of any state, the president must execute the laws to the extent of the defensive means. 

6. The Constitution does not  give Congress the right to make war against any State or to require the president to carry it on except when the State applies for assistance against her own people or to repel an invasion of a State by enemies from abroad, not to plunge them into civil war. 

7. A declaration of war or hostilities by the Central Government against any State or states would absolve all the States from their Federal obligations. 

8. The General Government may not engage in a war to punish the people for the political misdeeds of their State Governments or to force them to acknowledge  the supremacy of the central Government.  Some conquering others  and holding them as “subjugated provinces” would destroy the theory upon which they were united. 

9. The arming of any portion of the people against another save for “protecting the General Government in the exercise of its constitutional functions” would constitute an end of the Union.

Seventeen years earlier, Justice Joseph Story of the U.S. Supreme Court, though not an advocate of secession, quoted legal scholar George Tucker, saying in reference to Article IV, Section 4 of the Constitution: “It may not be amiss further to observe, (in the language of another commentator,) ‘that every pretext for intermeddling with the domestic concerns of any state, under colour of protecting it against domestic violence, is taken away by that part of the provision, which renders an application from the legislature, or executive authority of the state endangered necessary to be made to the general government, before its interference can be at all proper.’"  (Source: Commentaries on the Constitution of the United States, 1833, volume 3, sections 1808, 1819)

John Remington Graham said of  the use of federal troops within a state: "It is an historical fact that, on two occasions during their deliberations, the framers in the Philadelphia Convention voted to deny Congress the power of calling forth military forces of the Union to compel obedience of a state, and on two further occasions they voted to deny Congress the power of sending the Federal army or navy into the territory of any state, except as allowed under Article IV, Section 4 of the United States Constitution—to repel a foreign invasion or at the request of its legislature or governor to deal with domestic violence." (Source: Graham, op. cit., p. 287)

The most pertinent words from Judge Black’s opinion relative to the subject of this treatise are found in section 6 where he says, “There was undoubtedly a strong and universal conviction among the men who framed and ratified the Constitution, that military force would not only be useless, but pernicious, as a means of holding the States together.”  As the secession of Southern states in 1860 and 1861 was neither un-Constitutional nor illegal; and as the Confederate States of America did not invade the United States of America, the right of the government to use the military to defend itself against an invasion by a foreign power cannot justify Lincoln’s call for 75,000 troops to force the seceded states back into the union.

It is interesting to note that in December, shortly after receiving Judge Black’s opinions, Buchanan promoted him from Attorney General to Secretary of State.  Two months later, in February of 1861, John Moncure Daniel, after seven years as  chargé d'affaires to Sardinia, returned home, met with the new Secretary of State, and reported him to have said, “Sir, slavery is but an accident in this quarrel. Slavery is only the John Doe and Richard Doe case, in which this mooted question is to be decided—whether your States shall continue their sovereignty and self-government, or the Northern majorities shall govern you and all of you as they please and according to their own separate interest. If they had not the point of slavery convenient, they would try it on other points just the same.”

(Source: Pen of Fire, John Moncure Daniel, Peter Bridges, Kent State University Press, 2002, p. 161)