Visitation and Search

In the middle of the nineteenth century, the international law of the sea, although seemingly straight forward, had become the source of a dispute that threatened war between the United States and Britain, a threat that was finally extinguished on the eve of the American Civil War. As do many events of that time, the incident is wrapped up with slavery.

International law consisted of the shared understandings of the sovereign nations of the world as to how nations should conduct themselves in the relations with one another in diplomacy, war and peace and the respective rights and obligations in the dealings between a nation and a citizen of another nation. These understandings generally were not the result of conventions or agreements but were declared and elaborated by various philosophers of law referred to as "publicists". And although nations could vary the terms of international law between themselves by mutual treaties, no unilateral declaration by a nation was binding as a matter of international law upon another unless it was consented to, and no such declaration became binding generally as a matter of international law unless it was consented to by all. (The notion that international law might be "binding" is somewhat nebulous inasmuch as all nations were in theory co-equal, and no one of them had authority to sit in judgment over another, although the power to sit in judgment after a conquest was a different matter.)

According to international law, the oceans beyond a nation's territorial waters (regarded as three nautical miles from the shore in the mid-nineteenth century) were highways that were open to the free passage of all and, with a material exception, subject to the policing authority of none. The exception had to do with pirates. In time of peace a pirate was any vessel that attacked another vessel at sea. in time of war, however, any vessel that held authority of a nation at war was permitted to attack the vessels of an enemy – these consisted of naval vessels, generally referred to as "cruisers", and private vessels that held letters of marque issued by the government, called "privateers" – but all other attackers were pirates.

As the previous paragraph indicates, the existence of a state of war between nations altered the rules of international law at sea. The nations at war were deemed "belligerents" that possessed certain rights and obligations with respect to the other nations of the world. Neutral nations retained the right to conduct trade with the belligerent nations, but if a belligerent chose to blockade an enemy's ports, a vessel of any nationality – whether an enemy or a neutral – that was captured while trying to violate the blockade was forfeit to the captor. Moreover, belligerents possessed the right called "visitation and search" to stop vessels at sea, determine their nationality and inspect their cargoes. Enemy vessels encountered at sea by a cruiser or privateer could be captured or sunk. If the neutral vessel carried contraband of war that was bound for an enemy port, it could be seized; and if it carried non-contraband cargo that was owned by the enemy, it, too, could be seized.

The nascent United States derived a substantial portion of its national income from international trade, and its national government earned substantially all of its revenue from tariffs on such trade. With the start of the French Revolutionary War and the Napoleonic War the British and French navies not only put extreme pressure upon the merchant vessels of the neutral United States (as did other nations of Europe), but Britain and France also enacted trade restrictions that attempted to prevent a neutral merchantman from conducting trade with their respective enemies.

In addition, given Britain's large navy, she was constantly short of crewmen and historically met this need with press gangs. Captains of British cruisers regularly stopped American merchant vessels at sea and removed from them crewmen whom they alleged were either deserters from the British Navy or men of British birth – the claim that a sailor was American by birth or was a naturalized American were generally ignored. In one notorious incident, HMS Leopard confronted the USS Chesapeake off the coast of Virginia in 1807 and demanded that she submit to a search for British deserters. When the Chesapeake refused, the Leopard fired on her, killing 3 and wounding 18. The Chesapeake capitulated, and the Leopard removed four crewmen.

The impositions upon American trade and the impressment of American nationals were among the reasons why the United States declared war on Britain in 1812. The timing was unfortunate for the Americans. Napoleon invaded Russia in 1812; the Russians burned the countryside in front of the advancing French armies, and when the French reached Moscow, the Russians burned the city; the French Army was all but destroyed in the wintertime retreat from Moscow; and Napoleon capitulated in 1814. These circumstances permitted Britain to deploy forces to chastise America, which had only a limited professional army and a tiny navy. A peace was concluded at the end of 1814 that restored the parties to their positions and possessions as they existed at the start of the war.

In entirely separate developments, both the United States and Britain acted to outlaw the international slave trade in 1807. Slavery had been lawful and practiced in all the American colonies when they rebelled against Britain in 1776, and the Constitution the Americans adopted in 1789 acknowledged the existence of slavery and forbade Congress from enacting any law to restrict the importation of slaves until 1808. In 1807 Congress enacted a law making international slave trafficking illegal from as of January 1, 1808. Britain's Parliament also enacted a law prohibiting the international slave trade in 1807 – slavery was not practiced in Britain, but it was employed in Britain's possessions in the West Indies, where it was abolished by act of the British Parliament in the 1830s.

The British Navy began patrolling the coast of West Africa in 1808, but its presence there did not become significant until after 1818. The British Navy captured 1,600 slave ships and freed 150,000 Africans between 1808 and 1860. In the absence of a war, international law did not give the British Navy the right to interfere with any vessel not suspected of engaging in piracy, and although several nations, including the United States, did equate the slave trade with piracy, the view was not held so universally as to constitute a principle of international law. Accordingly, Britain negotiated a number of treaties with other nations that created rights to inspect one another's merchant vessels for evidence of the slave trading and to permit seizing the vessel if evidence of slave trafficking was found. Consistent with the practice under international law, the treaties provided that prize courts would rule on the legality of the capture with the proceeds of the condemned vessels to be divided among the nations that were party to the treaty and the officers and crew of the capturing vessel. Although the treaties provided that the prize courts were to consist of representatives of both nations, in practice the courts were British.

The United States did not enter into such a treaty, and many vessels engaged in the slave trade either maintained an American registry or flew an American flag as a possible deterrent against being stopped by a British cruiser. In practice British cruisers stopped American flag vessels on the argument that they needed to determine whether the American flag was not just a ruse, and once the stop had been made, they conducted a complete search. Such episodes were insults to America's sovereignty, but if the vessel was innocent of involvement with the slave trade, she was merely delayed in the course of her voyage, which was a relatively minor inconvenience. American vessels engaged in the slave trade were induced to destroy the evidence of their nationality and were condemned in the prize court as nationless outlaw vessels – the United States had made engaging in the slave trade a capital crime, and although no one was hanged for that crime until 1862, the threat was an inducement to cooperate. The captured crew was put ashore, and the vessel, having become an apparently nationless outlaw, was taken to a prize court for condemnation.

In 1842 the United States and Britain entered into the Webster Ashburton treaty that was intended to resolve a number of issues between the two nations, including suppression of the slave trade. (Although not included in the treaty, Britain agreed privately to cease the impressment of sailors from American ships.) The treaty committed both nations to employ their navies "to enforce, separately and respectively, the laws, rights, and obligations, of each of the two countries, for the suppression of the slave trade". Although the Americans saw the treaty as an assertion that the American Navy would police American vessels with respect to the slave trade, the British interpreted it as a concession that American vessels could be stopped by British cruisers to determine whether the claim of nationality was authentic.

The British believed that they had effectively suppressed the slave trade by the early 1850s, but the diversion of the forces away from such duties during the Crimean War (1853-1856) permitted its resurgence.

In December 1857 Lord Napier, the British minister to the United States, sent a lengthy letter to General Lewis Cass, the Secretary of State under President James Buchanan, chiding the United States for its failure to fulfill its policing obligations under the Webster Ashburton Treaty. In this letter he asserted that the British retained the right to visit American vessels. In January 1858 Lord Napier sent a second letter to General Cass advising him that the British had learned of the formation of a company in Cuba called "Expedition of Africa" (or "Expedition por Africa") that was backed by a wealthy family and was planning to use vessels flying the American flag to import slaves to Cuba. Slavery was lawful in Cuba, and although Spain agreed to prohibit international slave trafficking, enforcement was lax, and Cuba remained an active destination for slave ships.

Not coincidentally, the Democratic Party platform upon which President Buchanan was elected in 1856 called for the annexation of Cuba, and each of President Buchanan's annual messages to Congress recommended that the United States acquire Cuba.

In April 1858 General Cass responded to Lord Napier, with a refutation of Britain's claimed right to visit American vessels based upon the widely accepted interpretation of international law that the right of visitation and search did not exist in times of peace. He concluded by saying, "I am instructed by the President to inform your lordship that while he is determined to execute the treaty of 1842 with fidelity and efficiency, he is not prepared, under existing circumstances, to enter into any new stipulations on the subject of the African slave trade."

Apparently the United States did not take any action with respect to the information about the slave trafficking enterprise being organized in Cuba, but the British government directed its cruisers to act against the slave trade in those waters. They seized one American vessel that eventually was condemned as a slaver, and they stopped and searched a number of other American vessels, in some cases by firing a cannon or a musket to compel obedience to their orders. Articles in the New York Tribune on May 19 and 20, 1858, referred to nine incidents of American vessels being stopped and searched.

Forcibly stopping and searching American vessels – some of them traveling between points on the American coast – on America's doorstep raised a storm of outrage. Ship owners and merchants tried to organize a protest committee in a meeting at Delmonico's in New York City, but they were unable to select a chairman. The Senate Committee on Foreign Relations issued an angry report that concluded with the recommendation that American Navy vessels be sent to the area with orders "to protect all vessels of the United States on the high seas from search or detention by the vessels of war of any other nation."

The British government backpedaled quickly and agreed that nothing in the Webster Ashburton Treaty abrogated the principles of international law as General Cass had recited in his letter. In his State of the Union message delivered to Congress in December 1858, President Buchanan reported, "The claim has been abandoned in a manner reflecting honor on the British Government and evincing a just regard for the law of nations, and can not fail to strengthen the amicable relations between the two countries."

The British government suggested that some alternate means might be agreed upon to confirm a vessel's nationality, and they invited the Americans to make a proposal, which the Americans declined to do, although they offered to consider a British proposal. A British proposal had not been received by the time of the President's State of the Union message, but the President warned that "A strong opinion is, however, expressed that the occasional abuse of the flag of any nation is an evil far less to be deprecated than would be the establishment of any regulations which might be incompatible with the freedom of the seas."

The upshot was that the honor of the American flag was upheld, and under it Americans could with greater security pursue the illegal business of trafficking internationally in slaves.

Archbishop Hughes

John Joseph Hughes was the Archbishop of New York in 1860. He was born in Ireland in 1797. His family emigrated to the United States in 1816, and he followed them the next year. He studied at Mount St. Mary’s Seminary in Maryland, and he was ordained in 1826 in Philadelphia where he acquired a reputation as a vigorous defender of the church. He was appointed the coadjutor bishop of New York in 1837; he was consecrated as the fourth bishop of New York in 1842 and as the first archbishop of New York in 1850.

The archbishop’s cathedral was Saint Patrick’s, located on Mulberry Street just north of Prince Street. The building was completed in 1815. Archbishop Hughes initiated the construction of the present Saint Patrick’s Cathedral at 50th Street and Fifth Avenue – the cornerstone was laid in 1858, although it was not completed until after the archbishop’s death. Old Saint Patrick’s became a parish church when the new cathedral was consecrated, but it remains in operation, its churchyard and burial ground surrounded by a high redbrick wall. (The parish website has an interesting video about Archbishop Hughes and another about the architecture of the church and its associated buildings.)

In the presidential election of 1860 much was made of the associations with Catholicism of Stephen A Douglas, nominee of one segment of the Democratic Party and United States senator from Illinois. Senator Douglas’ second wife was a Catholic, and with his permission she sent his children by his first wife to a Catholic school. Inasmuch as Archbishop Hughes was regarded as the most prominent member of the Catholic clergy in the United States, it was not unusual for his name to be invoked by newspaper articles about Senator Douglas and Catholicism.

The Press & Tribune of Chicago on July 21, 1860 ran a lengthy article entitled “Is Douglas a Catholic?” that repeated the familiar, decades-old arguments directed by Protestants against Catholics in the United States. The following excerpts give the flavor:

We have never asserted that Judge Douglas is a Catholic. We do not intend to make that assertion until we can prove it. But in spite of our honest forbearance, the talk on the streets makes out a prima facie case against him….

The super human efforts of the Catholic papers in his behalf, before and after the meeting of the Charleston Convention; and the fact of the appearance of Archbishop Hughes at a Douglas meeting in New York – a meeting held to influence the action of the New York delegation in Baltimore; the unaccountable zeal of the Catholics in the delegation when the Convention assembled – these things couples with the fact that every Catholic journal in the United States, and as far as we know every priest and bishop and an overwhelming majority of the laymen of the Catholic Church are now supporting him as they never support anybody but a brother in the faith, make out what zealous Protestants call a strong case….

Judge Douglas has an unquestioned right to join the Catholic Church if he wants to….

Most men believe that Catholicism in this country is not so much a system of religion as a politico-ecclesiastic system – an engine for obtaining political power to the detriment of Liberty … and when it is proposed to establish a center of Catholic influence in the White House, for controlling the country’s diplomacy and domestic legislation, naturally enough people want to know it. The Protestant principle is very dear to Americans. It is the principle of religious and political liberty. To it we owe the Republican government and all the blessings which flow therefrom; and to it the hopes of all patriots are turned as the star which is to light all nations to independence and freedom. They want no impediment put in the way of the onward progress of that principle in its mission for freeing and blessing mankind. Least of all do they want this Protestant government turned over to the tender mercies of Catholic hands….

Who has ever known of the attendance of Archbishop Hughes upon partisan meetings, except in this one case that we have cited, in which Judge Douglas’ interests were at stake. It cannot be personal friendship; the Archbishop has greater friendship for Mr. Seward than for the Senator from Illinois; but when did he ever go to a Republican mass meeting for forward Mr. Seward’s claim?

The New York Times reported on the pro-Douglas meeting before the Democratic Convention (which failed to nominate a presidential candidate when it first convened in Charleston) reconvened at Baltimore, and it noted the attendance of Archbishop Hughes “and a number of other Catholic clergymen”.

The Wyandot Pioneer of Upper Sandusky, Ohio ran a briefer piece on July 5, 1860 under the headline “Now and Then”, which took a somewhat different spin on the subject. It is a more clever and effective piece of propaganda both for its brevity and for asserting conclusions without troubling the reader with a litany of facts:

When Gen. [Winfield] Scott was a candidate for the Presidency [as a Whig] the Democratic party considered him unfit for that high office because some of his family were Catholics, and they went so far as to intimate that the brave old man was in league with the Pope. Now they are engaged in singing hosannahs to Stephen A. Douglas whose family are not only Catholics, but who worships in that Church himself, and to whose nomination no man contributed more than did Arch-Bishop Hughes, the head and front of the Church in America. How circumstances do alter the cases – What a change has come o’er the spirit of their dreams since 1852.

Flim Flam

I have just read Flim Flam: Houdini and the Hereafter, the newly published edition of a play written by Gene Franklin Smith. Flim Flam premiered at the Malibu Playhouse last year to good notices, and it ran from June into August. I can see why – it is fun and engaging.

(Full disclosure: I have known and admired Gene Smith for years. When I started dating the woman whom I married 30 years ago (we are still married), she was house-managing a production of his play Life Beneath the Roses in New York City.)

Flim Flam depicts how Harry Houdini, the great magician and escape artist, set off in the later years of his life to explore – and debunk if appropriate – spiritualism: the belief that had become common starting in the United States before the Civil War, that the dead could and did communicate with the living. The play, set in the 1920s and after, depicts Harry Houdini and his wife as skeptics who remain, in the slightest degree, tantalizing alive to the possibility that communication with the dead, despite the rampant fraud pervading spiritualism, might be possible.

The possibility that the living could be assured by their deceased loved ones that there was an afterlife and they were happy in it was what made spiritualism so attractive to so many people and made them willing to be duped in the process.

Spiritualism was a popular enthusiasm that rose, persisted for decades, and then subsided. Some people believed in spirits beforehand, and some believe today. Although it seems slightly sacrilegious to say so, any belief in the supernatural, including holding conventional religious beliefs, predisposes one to belief in the existence of the spirit world.

In 1848 a pair of sisters in Hydesville, New York reported that they had made contact with the spirit world as evidenced by a series of knocking sounds through which the spirits responded to questions. Others soon found that they had powers as mediums to communicate with the spirits, who became more articulate, for example, by speaking through the voice of the medium, writing with the hand of the medium or causing the medium to paint pictures.

More than a mere curiosity, some people found a religious experience in spiritualism, believing that these spiritual messengers could carry the word of divinity directly to individuals residing in the world of the living. In a sense this was a mere extension of the liberalizing and democratizing trend of Protestant Christian theology at the time that was emphasizing the worshipper’s personal personal experience with divinity and changing the role of the clergy from intercessors to spiritual advisers. At the same time, the activities of some reformers tended to alienate them from the churches in which they had worshipped, and spiritualism offered them the possibility of religious engagement without disapproval from the pulpit.

The materials published with Flim Flam emphasize that it reflects extensive historical research and presents a largely accurate portrait of the individuals and events. I accept that as given although I am certain, like any work of drama based upon fact, it takes some license to fill the gaps in the historical record, for the sake of the dramatic construction and to hone its inner emotional truth. It is clever and makes for lively reading. I am sorry to have missed seeing it on stage.

Not Even Wrong

If you want to understand the hostility that greeted the Irish Catholics who immigrated to the United States in the first half of the nineteenth century you need only consult the headlines in recent daily newspapers. On April 23 just past, the New York Times carried a story under the headline “Far From the Sea, Another Crisis Of Migration” that told of the hostility – expressed through arson and vandalism – of portions of the resident population in Germany, Sweden and other nations of Europe toward immigrants. On the same day, the Wall Street Journal carried a similar story under the headline “Refugee Surge Presses on German Villages”.

At the time of the American Revolution, the Catholic population in the rebellious colonies was about 35,000 or a little more than one percent of the total population. The Catholic clergy in America were under the supervision of the bishop in London, but at the conclusion of the peace with Britain they petitioned the pope and were granted the right to select a superior from among their own numbers. The United States was established as a single prefecture in 1784; Baltimore was elevated to a diocese (with a bishop) in 1789 and to an archdiocese (with an archbishop) in 1808. The Maryland colony was established as a haven for Catholics, and although shifting political tides saw Catholicism outlawed even there for periods before the Revolution, Maryland possessed the largest Catholic population in the early days of the republic.

The country remained a single ecclesiastic province under the supervision of the Archbishop of Baltimore until 1847 when the diocese of Saint Louis was elevated to an archdiocese. In 1850 archdiocese were created in New York, Cincinnati, New Orleans and Oregon City (now Portland). By 1860 the Catholic population in the United States was about 4.5 million or one sixth of the total, and about half of that number were Irish.

The Irish started coming to the United States in large numbers even before the famine, which began in 1845. These came principally from the rural areas, and despite the general poverty in Ireland they were wealthy enough to afford the passage (or had relatives or friends who could help), but many were otherwise destitute of resources, formal education and skills, which limited their options and opportunities in American society.

The United States in 1860 and the years preceding was a predominantly Protestant country, and the longstanding history of mutual animosity between Protestantism and Catholicism stoked the suspicion and fear that may await any newcomers to a community, especially those that arrived in large numbers and were of different background, experience, beliefs, appearance and customs.

The prejudice manifested itself in a variety of ways including acts of violence against individuals and institutions such as churches. The Native American Party, also known as the American Party and the “No Nothings”, started as a secret membership society of Protestants and develop into a minor national party in the mid-1850s dedicated limiting the political influence of the Catholic community, for example by restricting immigration and mandating long periods for naturalization.

Members of the Irish-American community share a cultural memory of seeing signs reading “No Irish Need Apply” posted in hiring offices. A scholarly article asserts that the evidence of such signs is lacking, although scattered newspaper advertisements for household servants and errand boys use the phrase or, depending upon the jurisdiction, state a preference for a Protestant, German or American, which is much the same thing. The Irish who lacked skills competed for the lowest paying jobs, such as the laborers who dug the canals and built the railroads, and employers who excluded them would have denied themselves the benefit of this cheap labor pool.

Just how pervasive the animosity was cannot be gauged accurately, but it was expressed by members of Protestant society of all levels, including the laity and the clergy. In the 1830s, two distinguished members of the Protestant and Catholic clergy in Philadelphia held an extended public debate in print on the question “Is the Protestant religion the religion of Christ?” Not long after, a further extended public debate between members of the clergy explored the topic “Is the Roman Catholic Religion, in Any or in All its Principles and Doctrines, Inimical to Civil or Religious Liberty?”

While the nineteenth century may have may have regarded the discussion of these questions as a deadly serious matter, from the viewpoint of the twenty-first century the answers that they imply are described aptly by the phrase attributed to the physicist Wolfgang Pauli: they are “not even wrong”.

Inevitability

All the events of the past shape our experience of the present, yet some past events are so significant – such as the Civil War in America – that we cannot conceive of subsequent history or our present experience would not have been materially different if the past had been different.  As a result, we tend to look at the at the significant events in the past the necessary precedent of subsequent history and our present experience.  This is quite logical, and it conforms to our understanding of causation and the flow of time.  Sometimes psychological experience is so intense that we come to believe that the events of the past that continue to exert a significant influence on the course of present events – such as the outcome of the Civil War in America – were themselves inevitable.  This is a fallacy that runs counter to our understanding of causation and the flow of time.

World War I and World War II are the signature events of the first half of the twentieth century, and the entry of the United States into those wars had a significant impact upon their outcomes.  How might the course of history have changed if the Confederates had been successful in defending their assertion of independence in the 1860s and, instead of a single nation, the United States had become two – or more – separate countries?

The notion that developed after the Civil War that the cause of Confederate independence was inherently hopeless and that the Federal victory was inevitable as a result of the greater population and industrial resources of the northern states.  The notion, while romantic and perhaps comforting to the defeated ex-Confederates, was contrary to fact.  To be more precise: the premise was correct in that the northern states had more people and larger manufacturing capabilities than those in the south; the error lay in the assertion that these advantages would inevitably lead to a Federal victory.

The respective conditions for a military victory were “asymmetrical” to use the term of contemporary military analysis.  The Confederates had asserted their political independence, from the union formed under the 1789 Constitution: victory for them in the war meant preserving their army as a force sufficiently strong to sustain the political assertion.  In short, they needed to have a credible army in place when the fighting stopped.  The Federal war aim was to preserve the legal authority of the 1789 Constitution and the and geographic integrity of the nation formed under it.  To achieve this goal, the Federals needed to destroy the Confederate army, capture it or weaken it so thoroughly that it was no longer capable of sustaining the claim of Confederate independence.  In short, they needed a total military victory.

The fire eaters kept the secession spark alive, but the general electorate of the states of the deep south selected delegates to state conventions that determined to withdraw from the national union.  Although emotions brought to a boil in the national election remained elevated in the secession elections the followed immediately after, the majority permitted themselves to be persuaded by the fire eaters.  Surely reasonable men must have considered that war could result, but apparently that possibility did not deter them.   When those states rejoined into the Confederacy, they formed a substantial nation with a substantial population and resources.  Reasonable men might have come to the reasonable conclusion that the subjugation of the Confederacy was nigh impossible.

If the Federals could not conquer the Confederates, they would grow weary of the fight and overwhelmed by its cost.  If the Confederate government, and the army on which the assertion of independence depended, remained in existence at that time, the Confederates would have won.

The foremost military professional in the country hedged his bets.  Immediately before President Lincoln’s inauguration General Winfield Scott, general in chief of the Army, presented four alternative courses of action for the incoming government to consider: political compromise to limit the damage already incurred; a naval blockade to effect an economic cordon sanitaire of the seceded south; military conquest; and the notorious “wayward sisters, depart in peace!”  General Scott did not speculate on the possible success of any alternative.  He dwelled on the option of military conquest, possibly the option he expected the new government to pursue, and asked for whose benefit a military conquest might be since it would be expensive in life and resources and would result in “fifteen devastated provinces … held, by heavy garrisons, for generations … followed by a Protector or Emperor.”  In asserting that conquest would destroy American liberty and elected government, he apparently did not see the need to express an opinion whether conquest was possible.

Shortly after the war began, General Scott expressed a somewhat more comprehensive strategic vision of how to wage the war: a tight naval blockade of the Confederate coast combined with a push down the Mississippi River.  This sketch of a plan – lampooned in the press at the time and in histories ever since as the “Anaconda Plan” – was an elaboration of the cordon sanitaire option proposed earlier.  Although General Scott’s sketch avoided a “piece-meal” conquest of the seceded states by encircling them, it did not articulate a next step – how the anaconda would crush its prey.  Without an invasion of Confederate territory and an attack upon the Confederate armies, the Confederate government and independence would have remained intact  Confined within its borders, and not challenged from without, the Confederate nation might well have persisted.

The problem remained through much of the war that the combatants were relatively evenly matched.  Federal forces continued to grow larger, but not until the third year of the war did they become sufficiently large to make a material difference.  The need to increase the army brought about conscription, and conscription brought opposition, the best known and most violent being the draft riots in New York City in July 1863.  Even with the Federal larger army, the challenge remained to use it to capture or destroy the Confederate forces.

The difficulty was not only military but also political.  Although the Republican radicals in Congress were often critical of the president and the course of the war, President Lincoln, as commander-in-chief, directed the Federal war effort with little interference from Congress.  Thus, while regular national elections in 1862 could have changed the political complexion of Congress to make it more hostile to the president, it might not have interfered with the power of the president to direct the war.  If the events of 1864 had not indicated that an eventual Federal military victory might be possible, the national elections of that autumn might have removed President Lincoln from office, altered the make-up of Congress and changed the Federal policy on the prosecution of the war.

With President Lincoln re-elected, the Federal strategy for fighting the war remained unchanged, and the defeat of the Confederacy became more likely, but it did not become inevitable until later.

Hate Speech

The legacy of the Civil War has been making a lot of news in recent months. Foremost has been the summary expulsion of a chapter of ΣΆΈ from the University of Oklahoma when some of its members were found to have been singing songs filled with racial epithets and threats of lynchings. More recently, the Supreme Court heard arguments on a lawsuit resulting from the refusal of the State of Texas to permit the Sons of the Confederate Veterans to offer a vanity license plate that featured the image of the Confederate battle flag.

The behavior of the college boys was appalling, and the refusal of Texas to endorse an image that is indelibly associated with racially-based American slavery was courageous. In a society such as ours, with many conflicting interests and concerns, nothing is ever simple, and a discussion of them that tries to address the issues tends to become so nuanced that it cannot hope to persuade anyone that it is correct. Even in the wave of outrage that approved the actions taken by the University of Oklahoma, and in the discussions of the Texas license plate case, there could be heard the reminders, first, that they raised First Amendment issues of freedom of speech and, second, that popular speech does not need a legal protection. These are important points to keep in mind.

Such events are merely the latest incarnations of an enduring problem of how a changing American society deals with the racist elements of its past – not merely the legacy of slavery but the extended post-Civil War period in which racial injustice was enforced by law and largely condoned by white society.

In the late 1850s the New York Tribune stated that Senator Stephen A. Douglas regularly swore and used racial epithets in debates on the floor of the United States Senate – the article alleged that his language was cleaned up in the transcripts of the proceedings. In an unrelated episode Senator William H. Seward said either to or of Senator Douglas that no man would become president who spells Negro with two Gs. In 1860 the same epithet was used as a common term of speech in all sorts of newspapers, north and south, pro-slavery and pro-abolition. The 1860 edition of the Dictionary of Americanisms contained an entry that described the word as a "vulgar pronunciation" rather than a word vulgar in itself.

Times have changed. The news media avoids using the epithet in question even when their reporting is limited to stating only the hard facts. My impression from reading the news and seeing video clips of the episode involving the University of Oklahoma is that if you did not know what the epithet was, you could not guess. This restraint reflects a judgment made by the society at large that it will not condone, in public or, increasingly, in private speech, statements that could be construed as intentionally or incidentally hurtful based upon elements of identity – such as race, ethnicity, gender, religion, appearance, disability or sexual orientation. We denigrate this societal judgment by calling it "political correctness", but it actually has shaped our speech and thoughts in various ways, curtailing the uses that can be made these identity differences as either a sword or a shield. It has not made us a society of saints, but it has caused us to become generally more aware that we are talking about people, not stereotypes, and the people we are talking about are our neighbors.

Tempting as it may seem, the solution to the problem of words, images, symbols and ideas that may be construed as intentionally or incidentally hurtful based upon elements of identity is not to suppress and expunge them. To ban books such as Huckleberry Finn or To Kill a Mockingbird because they contain racial epithets is to deny ourselves the example of stories that celebrate an awareness of humanity and the courage to stand up against popular prejudice. To suppress the facts of the past is to deny ourselves the ability to learn history's lessons that might enable us to improve our present conduct.

In many southern towns there is a monument to the soldiers who fought for the Confederate cause just as in many northern towns where is a monument for those who fought for the Federal cause. In each case these monuments were erected by the surviving veterans and by the friends and immediate family of the fallen. Most were men who fought honorably to defend the principles in which they believed and the communities in which they lived. Both the Confederates and the Federals fought to protect the political liberties of the dominant portions of their respective societies. The Federals fought to preserve the liberties established under the 1789 Constitution. The Confederates fought to rid themselves of the threat to their liberties that they feared if they remained under the 1789 Constitution – their rebellion was no less principled, and no more unlawful, than the rebellion of the 13 colonies from the rule of the British crown and Parliament in 1776, and the Confederates saw themselves, not without justice, as the rightful heirs of the earlier revolutionaries.

I accept as a fact that the Civil War was fought over Constitutional principles and not over slavery, although the Civil War resulted in the end of slavery. It did not rid society, north or south, of its attitudes and customs of racial injustice and oppression. It was not fought between a side that promoted slavery and a side that opposed it but rather between a side that practiced slavery and a side that did not.

The difficulty of celebrating the Confederacy in the present day is that it was a regime founded to protect racially-based slavery, which society today generally regards as unworthy and repellent. While some may claim to honor only the praiseworthy aspects of the Confederates' fight and disregard or even disparage the root cause of the regime's existence, others argue that to honor the fight is to honor slavery. I assume for the sake of this discussion that both views are held honestly and not for the sake of socio-political advantage, and, accordingly, I cannot conceive of a solution that would satisfy all concerned.

In the case of the Texas vanity license plates, I don't see why the Constitution should require the state to employ the Confederate battle flag, which some see as morally objectionable, on the license it requires by law to be displayed on vehicles. On the other hand, I don't think that the state ought to be able to prevent private individuals from displaying the image of the Confederate battle flag. And if the Sons of the Confederate Veterans want to put decals of the Confederate battle flag on their bumpers near their license plates, an area not regulated by the state, more power to 'em.

Needless to say, no one has floated my name for nomination to the Supreme Court.

Use and Abuse

Every so often someone with a political agenda will invoke in tones of patient sweetness and reason the so-called lessons history as a cudgel with which to instruct those with an opposing political agenda about the errors of their ways. One interesting aspect of this phenomenon is that those who purport to correct the errors of others usually misstate the facts of history at least as egregiously as those whom they would instruct.

The one that has caught my attention most recently is "4 Huge Differences Between Abraham Lincoln And Modern Liberals" by Carson Holloway, a visiting fellow in American political thought in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation. Mr. Holloway’s thesis is summed up by the following excerpt from his article:

[T]oday’s Left contends that opposition to same-sex marriage is the moral equivalent of racism, an irrational bigotry that unjustly curtails the rights of others. They thus tacitly link their cause to that of Lincoln, whose political career was dedicated to resisting a great injustice committed in the name of racism: slavery.

These similarities, however, are misleading. The contemporary Left’s campaign to redefine marriage is actually guided by principles that are incompatible with those that informed Lincoln’s thought and statesmanship.

While I have my own political views, I propose to speak in the name of historical accuracy and in so doing point out the differences between Mr. Lincoln’s time and our’s to provide a context for understanding what Mr. Lincoln said and did and why. The point of departure for each part of the discussion will be one of the sub-theses that that Mr. Holloway sets forth in his article.

"Abraham Lincoln Was Charitable to People Who Disagreed with Him"

As with any other political figure, Mr. Lincoln spoke in keeping with the attitudes and vocabulary of his day as suited his purpose in speaking, his personality and his intent to influence his audience. It is also important to keep in mind that Mr. Lincoln was deemed a moderate on the subject of slavery, which is a significant reason why he received the Republican Party’s nomination in 1860 rather than the more outspoken and extreme frontrunner Senator William H. Seward. Indeed, shortly after Mr. Lincoln’s election, Wendell Phillips, the well known abolitionist orator, said of him that he was "[n]ot an abolitionist, hardly and antislavery man". The abolitionists constituted a small minority in northern society and were generally regarded as political extremists -- during the 1860 campaign Senator Stephen A. Douglas, one of the four presidential candidates, said that he would like to rid the country of both the abolitionists and those who advocated secession.

It is also important to remember that, although slavery was the root cause of the Civil War, the fight was about the integrity of the American political process -- whether the southern states could reject the outcome of the 1860 presidential election by declaring their independence from the federal Union under the Constitution. The northern states would fight to preserve the Union, but they would not have fought to free the slaves, and thus the Federals did not make ending slavery one of their war aims. Eventually they used an attack on slavery as a weapon in the war.

Can there be any wonder, therefore, that Mr. Lincoln’s language on the subject of slavery was generally moderate? When the circumstances warranted it, however, Mr. Lincoln could be immoderate by his own standards, such as during his "House Divided" speech in 1858 in alleging a conspiracy when President Buchanan, in his inaugural address urged the nation to let the Supreme Court put the issue of slavery to rest just two days before the Court issued the infamous Dred Scott decision:

[I]n such a case, we find it impossible to not believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first lick was struck.

("Stephen" was Senator Stephen Douglas who urged the policy of popular sovereignty as a means of putting the issue of slavery in the federal territories to rest as a political issue; "Franklin" was President Franklin Pierce who was in office when the Dred Scott case was argued; "Roger" was Roger Taney who was Chief Justice of the Supreme Court; and "James" was President James Buchanan whose involvement is mentioned above.)

The passage from Mr. Lincoln’s speech has a fair amount of snark in it and is a far cry from "With malice toward none, with charity for all" of his second inaugural address.

"Abraham Lincoln Upheld Natural Rights; Liberals Reject Them"

Mr. Holloway says that "Lincoln did not argue against slavery on the basis of such concepts as ‘history’ and ‘progress’ -- although he did once suggest that America’s growing disregard for the principles of the Declaration of Independence showed a lamentable ‘progress’ in ‘degeneracy.’"

As to the first part of Mr. Holloway’s statement, Mr. Lincoln did speak of natural rights on a couple of occasions, but he lived in a world where philosophers spoke of natural rights, but most of the western government believed in and practiced instead the divine right of kings and the hereditary rights of the aristocracy. In the United States republican government with its near universal white male suffrage was a radical experiment at which most of the governments of Europe looked askance. Even in the relatively liberal parliamentary government of Great Britain only about eleven percent of the white male population possessed the right to vote.

In such a world, the recognition of natural rights would be progress. Whether natural rights would be vindicated had yet to become a settled matter of history.

Even in the United States where the cause of recognizing natural rights had advanced in practice further than anywhere else in the world, the proposition that all men are created equal was not unqualified. And it is here that the words of Mr. Lincoln, referred to in the second party of Mr. Holloway’s statement, showed -- as a fully wrought argument -- that the work of history was incomplete and progress had yet to be achieved:

I am not a Know-Nothing. That is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor of degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that “all men are created equal.'' We now practically read it “all men are created equal, except negroes.'' When the Know-Nothings get control, it will read “all men are created equal, except negroes, and foreigners, and catholics.'' When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty -- to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy.

Despite the despotism and bigotry that exists in the world I would maintain that today acceptance of natural rights had become near universal, although the actual practice lags in comparison with the ideal.

While it may be convenient to argue, as Mr. Holloway does, that natural rights are permanent, society and its institutions -- that interact with and provide the context for exercising and understanding natural rights -- are not. Take marriage for example. In 1860 state and local governments had laws to regulate the qualifications for and the legality of marriages, the legal rights and obligations of individuals in a marriage relationship and the circumstances under which the rights and obligations of marriage could be suspended through separation or terminated through divorce. The public health movement was encouraging state and local governments to take even greater notice of marriage as one of the three major medical events in the life of an individual along with birth and death. As encouraged, some governments were starting to keep records of these events as part of the data for assessing the state of public health, although this was not without its controversy -- in 1860 Archbishop John Hughes of New York defied the authorities by refusing to report marriages performed as required by law.

Although the traditional institution of marriage has existed for millennia (as commented recently in the argument before the Supreme Court), and although the parties to a traditional marriage may produce children, procreation is not the result of marriage, nor is marriage necessary for procreation. It is also the case that same gender sexual orientation has existed for millennia with varying degrees of hostility, tolerance or neglect from a largely heterosexual community. The Constitution establishes a separation of church and state, so the interest of the state in marriage cannot be that the church regards it as a sacrament but because the state has an interest in regulating the legal implications resulting from the entry of two people into what is intended to be an intimate and enduring relation, and the possibility a children from the marriage is merely incidental and not the driving reason.

Our society and its institutions are changed considerably since 1860, and some of those changes that pertain to marriage have tax and other legal and economic implications, and these changes have given the legal recognition of the intimate relation of marriage a greater significance. I don’t know that Mr. Lincoln even gave much thought to the matter of gender orientation in his reflections upon natural rights, but it is clear that he did give thought to race, religion and national origin -- which along with gender and gender orientation are elements of a person’s fundamental identity. In 1860 such matters were generally treated with neglect. Just as American society has indulged a spirit of increasing generosity with respect to national origin, religion and race, so also it is indulging that spirit more increasingly to gender and gender orientation.

Changing attitudes in society and changes of the institutions in society can shed new light upon the constituents of natural rights.

"Abraham Lincoln Fought to Restore America’s Founding Ideals"

To an extent, this proposition is a rehash of the previous one, and to that extent its historical foundation is refuted by the same demonstration about the spread of the concept of natural rights and the changes in the society and its institutions that affect the meaning of natural rights.

To an extent it is also a rehash of the proposition that President Lincoln fought to end slavery -- as discussed above, President Lincoln fought to restore the integrity of the government established under the Constitution, and the end of slavery was collateral damage from the war.

Equality before the law was in ideal stated in the Declaration of Independence, but slavery existed in all the states when the thirteen rebellious American colonies achieved their formal separation from Britain. Through programs of emancipation the substantial slave populations in the northern states had been reduced, and by 1860 only mere vestiges of slavery remained there. Constitutional amendments that ended slavery and declared the rights of citizenship did not accomplish equality before the law based upon race.

Religious diversity in the United States encouraged adoption of the First Amendment that provided for a separation of church and state so that no one religious sent could use the powers of government to raise itself above the others, which tended to promote equality of the law based upon religion.

The right to vote was not extended to women until the twentieth century, and while that measure did not achieve equality before the law based upon gender, it provided a direct weight in the decisions of government, which had the practical effect of increasing their political clout.

It seems to me that the course of American history has not been to restore the founders’ ideal but to achieve them.

"Abraham Lincoln Didn’t Write Things Into the Constitution"

Mr. Lincoln did not have the power to pull the levels of government until his election as president, but Constitutional controversy swirled around President Lincoln throughout the Civil War. For anyone interested in delving into this aspect of history I recommend Constitutional Problems Under Lincoln by James. G. Randall (D. Appleton and Company 1926). Professor Randall was one of the foremost Lincoln scholars of his generation. The controversies included the extent of the war powers, the suspension of the writ of habeas corpus, military rule and arbitrary arrests, the imposition of martial law and the use of military commissions (as judicial tribunals in place of courts), the government of occupied districts in the south, the constitutional foundations of conscription, the treatment of confiscated property, the partition of Virginia and the suppression of newspapers. Although President Lincoln’s approach tended to be moderate and humane, he and those working under his authority acted vigorously and sometimes ruthlessly to preserve the Union.

The study of history is endlessly fascinating in itself for what it can tell us about the past. Those who attempt to use it for contemporary political purposes generally end up abusing it.