Federal Usurpation Total Centralized Power
To: Henry Crain--Constitutional Historian-
You may want to review the partial part of an article I posted below to use in your April 8 speech at the CSA memorial service at the park. It explains that the overthrow of States Rights was the plan and purpose of the Federal government to usurp total power and concentrate all power and control with the Federal government in
under the Socialist Republican Party of Lincoln. This was Lincoln's
purpose for the war. Lincoln was a
Socialist pen-pal of Karl Marx.
Recently the modern neocon and globalist Republican Newt Gingrich is said to have blurted out "The war wasn't fought over slavery. It was fought to concentrate and centralize all power in
He was correct. Washington
SCV Camp 141 Commander
However, what we find during the Civil War is a departure from the growing concept that such predations were to be curbed and discouraged.
Instead, we find that official policy, fully sanctioned by the highest levels of the military command of the Federal forces commanded by President Lincoln and in concurrence with the policy set by the highest echelons of the civilian leadership enthusiastically engaged in the type of war crimes that are implicit in the conduct of a “Total War.”
We must ask ourselves how this concept of Total War was seen by both sides during the Civil War and understand how this concept differed from previous conceptions of what was considered proper warfare.
“Total War” was NOT a concept taught at
Point prior to the Civil War, where war on civilians was
considered anathema to “civilized warfare.” It was certainly NOT taught to
cadets such as Grant, Sherman, Halleck and Sheridan when they attended the
The code of military conduct at the time was set by the Articles of War of 1806, which was in force until it was replaced in 1863 by the “Lieber Code” (also known as “General Order 100.)
The 1806 Code stated:
“Any officer or soldier who shall quit his post or colors to plunder and pillage shall suffer death or other such punishment as shall be ordered by a sentence of a general court martial.”
However, this view ran contrary to the political desire to annihilate the enemy “root and branch”, which gripped the military and political elites in the North. This was because it was not simply State Governments that were “in rebellion” against the Federal Government; it was the entire free population that was rejecting the domination of the Federal Government, which they felt had betrayed the compact they signed onto when they ratified the Constitution of 1789 by expanding Federal power over the states beyond the enumerated Constitutional limitations. Having left British rule because they felt the British ruled WITHOUT the consent of the governed, the South came to the conclusion, after a long series of political crises, that the Federal Government of 1861 was now in the same position as the government of King George III.
They were determined to exercise their right to remove themselves from the control of the Federal Government in the same manner in which they removed themselves from the control of the British government.
To prevent the South from exercising this right, the Federal Government needed to defeat and subjugate the Confederacy and to establish a new constitutional order in its place… a constitutional order where the Federal Government moved from a position where it was limited to enumerated Constitutional powers regarding the individual states to one where it was perpetual, indivisible, dominant and exalted as “sacred.”
The war aim of the Federal Government in
was to break the “chains” of the Constitution which placed much governing power
in the hands of the States and instead create a supreme National Government
with the potential to exert almost unlimited authority. Such authority would allow the backers of the
Republican Party, those of the rising Northeastern Industrial and Railroad
interests, to use the coercive power of the Federal Government to their own
purposes over and against the power of the States to interfere.
To succeed in such a massive re-structuring of the Government meant that the South could not just be militarily defeated on the battlefield… it has to be annihilated, its culture demonized and eradicated, its economy desolated and its political will broken so thoroughly that there would never again remain any question regarding Federal dominance over the States.
As Adam Badeau , who was on General Grant’s staff and was present at
“It was not victory that either side was playing for, but for existence. If the rebels won, they destroyed a nation; if the government succeeded, it annihilated a rebellion.”
Of course, the Confederacy in no way wanted to “destroy” the United States, which would have continued, albeit in attenuated form as a Nation, after the South left.
For the South, however, the statement is entirely true: for the Federal Government to succeed in overturning the Constitution of 1789 and, in effect, create a “
based on immensely increased Federal power, the Confederacy had to not just be
defeated, BUT ANN Second Republic IHILATED.
But if the earlier concepts of proper standards of war conflicted with those adopted by the Federal Government during the Civil War, what ARE “proper standards of war?”
Further, did the Federal Government, in adopting NEW standards of warfare, violate the very standards they adopted?
There were several standards of war that were in effect in the Western world during the time the Civil War took place:
1) “Customary use of long standing”
Customary Usage are practices that go back hundred and thousands of years not based on written treaties of conventions. To meet the criteria of “Customary Usage” it must be a custom practiced by Nations; that is, there is an unwritten agreement among nations that such practice is mandated by custom. For example, a white flag is a considered to be indicating a truce by longstanding custom.
2) The Geneva Convention of 1862 which narrowly focused on “The Amelioration of the condition of the wounded in armies in the field.”
This convention grew out of the Crimean War and was signed by 10 European States excluding
Great Britain. The United
States also did not sign and therefore was
not bound by its articles.
3) Emmerich de Vattel (1714-67) “The Law of Nations”
Historically, the government of the
States had adhered to the international law
code of the Swiss jurist, Emmerich de Vattel (1714-67), author of The Law of
Nations, on the proper conduct of war. As late as 1862, the U.S. Supreme Court
in rendering its opinion in the “Prize Cases” cited Vattel. Because of the
emphasis it placed on the protection of non-combatants, the Vattel code was
repudiated by Lincoln who issued a new law governing warfare that lacked
international standing – GENERAL ORDERS No. 100, known as the “Lieber Code” of 1863.
Joesph Fallon, E-book “Lincoln Uncensored” endnote 21
4) The Lieber Code
Francis Lieber was a German-American legal scholar, jurist and political philosopher; the code that bears his name (AKA General Order 100) was a series of 156 articles published in 1863.
Lincoln signed it as part of
his Constitutional duty under Article II, which states that the President must
supply the rules and regulations for the governance of the military.
It read: “The following ‘Instructions for the Government of Armies of the United States in the Field,’ prepared by Francis Lieber, LL.D., and revised by a board of officers, of which Maj. Gen. E. A. Hitchcock is president, having been approved by the President of the United States, he commands that they be published for the information of all concerned. By order of the Secretary of War: E. D. TOWNSEND, Assistant
Washington April 24, 1863.” The War of the Rebellion: a Compilation
of the Official Records of the Union and Confederate Armies, also known as
Official records of the Union and Confederate armies or OR, Series III, Volume
III, p. 148.
From the outbreak of the Civil War,
strategy was to defeat the Confederacy by targeting Southern civilians. One of his
first acts was to order a blockade of Southern ports on April 19, 1861 to deny food and medicine, among
other items, to civilians. Because such acts violated traditional U.S.
military rules of conduct, Lincoln
needed a new code to “legalize” his actions.
Lieber was the perfect choice for this task. The Prussian immigrant was contemptuous of the Constitution. He dismissed the federal system it had established as a “confederacies of petty sovereigns” based on the “obsolete ideas” of Thomas Jefferson. He shared
drive to centralize political power in the executive branch of the federal
government. They alleged implied powers in the Constitution grant the president
in wartime authority to enact legislation as well as to interpret the
Constitution — to deny or suspend constitutional rights as the chief executive
In 1904, the Geneva Convention with which we are most familiar adopted the Lieber Code almost word for word.
However, the Code contains conflicts within its articles.
Article 15 discusses “military necessity” and its definition allows “destruction of property” – that is, all property can be destroyed if determined to be of “military necessity.”
However, Article 22 states “The principle has been more and more acknowledged that they unarmed citizen is to be spared in person, property and honor as much as the exigencies of war allow.”
Further, Article 23 of the Code states “Private Citizens are no longer murdered, enslaved or carried off to distant parts and the inoffensive individual is as little disturbed in his private relations as the commander of hostile troops can afford to grant in the overruling demands of vigorous war.”
But the Code allows for an ultimate “out”: Article 5 states “To save the country (that is, the
Union as conceived by the
Federal Government) is paramount to all other considerations.”
Therefore, the Leiber Code, provides both the rationale AND the cover for Federal ambition.
The rationale for Total War conducted against the South was the concept of “military necessity.”
Military necessity was defined by General David Hunter in 1862 as “those measures which are indispensable for securing the ends of the war” (Burrus M. Carnahan, “Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity” – The American Journal of International Law 92, no.2 April 1998, page 215)
approved the Lieber Code which contained Article 14 that states:
“Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war; and which are lawful according to the modern law and usages if war… military necessity admits of all direct destruction of life or limb or armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contest of the war… of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the army.”
In approving the Lieber code, Lincoln essentially was given the power to do whatever he deemed necessary to win the war, which was defined as the subjugation of the seceding states and establishing total control over them via the authority of the Federal Government’s new vision of the Constitution – that is, one that rejected the voluntary Union established in 1789 for the counter-revolutionary vision of a “perpetual” and “sacred” Union from which it separation was IMPOSSIBLE.
When urged by an
congressman that he should “maul” the South, Lincoln
replied “Tell the people of Illinois
that I’ll do it” (Donald E. Sutherland, “Abraham Lincoln, John Pope, and the
Origins of Total War” – The Journal of Military History, no 4 (October 1992) Page
Given the ferocity of the Battle of Shiloh in April 1862, Ulysses S. Grant decided that the depth of Southern determination to break free of the control of the Federal Government was so deep that simple military victory would be insufficient to defeating it; he decided that to defeat the South he would follow a strategy that would annihilate the South. He would “consume everything (of civilian property) that could be used to support of supply the armies. (Janda page 13)
He and his generals proved themselves in sync with the views of the political leadership in the summer of 1863 when they proceeded to demonstrate how the doctrine of military necessity would be enforced.
Grant wrote to his subordinate commanders (Sherman and Sheridan) that the South was getting what it deserved and that “We are not only fighting hostile armies, but a hostile people, and we must make old and young, rich and poor, feel the hard hand of war. (Janda page 18)
Acting in a manner his commander – and Commander in Chief – would approve, on
July 23 1862,
General Pope issued Order No. 11, which ordered the US Army Commanders to ‘proceed
immediately to arrest all disloyal male citizens within their lines or within
their reach in rear of their respective stations.’ If such citizens did not
swear an oath of allegiance to the US government, they would be expelled from
their homes; if they returned to their homes, they were to be shot as spies;
for him who took an oath and violated it “he shall be shot and his property
The result of this order was that Pope’s troops went on a rampage throughout
parts of Virginia, citing his
orders to justify acts of plunder and indiscriminate destruction.
A Union general in Stafford Country Virginia observed “our men… now believe they have a perfect right to rob, tyrannize, threaten and maltreat any one they please, under the orders of Gen. Pope.” (Janda page 12)
Further, there were numerous charges of rape and violence against both Black and White women.
Again, the Lieber Code is filled with restrictions that are obviated by the over-riding requirement of “military necessity” which in reality justifies violating all its more humane rules.
As we list the myriad violations of the code to come, keep in mind that the General Order 100 purports to be a document which on the one hand places limits on military actions and on the other absolves all violations of such limits under the doctrine of “military necessity.”
The code states:
“All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offence.”
What is left unsaid by this unequivocal statement was nonetheless not lost on Lincoln or Grant or his subordinates: EXCEPT WHEN REQUIRED BY M
ILITARY NECESSITY, which undid
virtually ALL the protections for civilians and non-combatants that were
written in the code.
The fatal contradictions in the Leiber Code allowed for all its apparent protections to be subverted. All Southerners were to be treated as rebels and traitors and as such deserved no protections beyond what the commanders in the field found convenient to grant them.
Paragraph 151 of the code defined the Southern states as ineligible for the very protections the code was supposedly written to enforce:
“The tern rebellion is applied to an insurrection of large extent, and is usually a war between the legitimate government of a country and portions of its provinces of the same who seek to throw off their allegiance to it and set up a government of their own.”
Of course, the great historical irony here is that this is the PRECISELY the concept of Liberty that the colonial governments had in 1776 when they adopted the Declaration of Independence and created the very Union that was now, in a curious case of national patricide, trying to overthrow and destroy.
By defining the Southern position as “rebellion” rather than “secession” the Lieber Code becomes a self-annihilating document, which allows the Federal armed forces to make war on civilians; that is, it considers them “disloyal citizens.”
Paragraph 156 of the Code states that the commander in the field:
“will throw the burden of the war as much as lies within his power on the disloyal citizens” – that is, the very citizens whose place in the “sacred, perpetual union” the Lincoln Government was waging a very bloody and destructive war to preserve.
Lastly, the Code considers any sort of resistance, “armed or unarmed,” to be war against the Federal Government of the
States and therefore an act of treason.
Before leaving the codes of warfare as they were understood by the opposing armies, we should take a look at the code that was understood to be in force by the Confederacy.
The South, whose military commanders were from families steeped in military tradition, took the codes of conduct towards civilians that were taught in
West Point and other military colleges in
the South very seriously. They did NOT
operate under the doctrine of “military necessity,” which over-rode all other
humanitarian considerations in pursuit of victory.
The Confederacy did NOT seek to annihilate the North, nor exercise their influence upon it, nor foist its cultural and social values on it, nor rule it; they sought to LEAVE IT.
Robert E. Lee gives us a clear view of how the South understood the rules of war in his General Order 73, issued in 1863 during the
“No troops could have displayed greater fortitude or better performed the arduous marches of the past ten days.
Their conduct in other respects has with few exceptions been in keeping with their character as soldiers, and entitles them to approbation and praise.
There have however been instances of forgetfulness on the part of some, that they have in keeping the yet unsullied reputation of the army, and that the duties expected of us by civilization and Christianity are not less obligatory in the country of the enemy than in our own.
The commanding general considers that no greater disgrace could befall the army, and through it our whole people, than the perpetration of the barbarous outrages upon the unarmed, and defenseless [sic] and the wanton destruction of private property that have marked the course of the enemy in our own country.
Such proceedings not only degrade the perpetrators and all connected with them, but are subversive of the discipline and efficiency of the army, and destructive of the ends of our present movement.
It must be remembered that we make war only upon armed men, and that we cannot take vengeance for the wrongs our people have suffered without lowering ourselves in the eyes of all whose abhorrence has been excited by the atrocities of our enemies, and offending against Him to whom vengeance belongeth, without whose favor and support our efforts must all prove in vain.
The commanding general therefore earnestly exhorts the troops to abstain with most scrupulous care from unnecessary or wanton injury to private property, and he enjoins upon all officers to arrest and bring to summary punishment all who shall in any way offend against the orders on this subject.” – (The Wartime Papers of R. E. Lee (
Bramhall House, 1961, pages 533-534)