Belligerent Public Enemies in a Territorial War

Lincoln’s unfortunate choice of a mentor on reconstruction, William Whiting of Massachusetts, below refers to the American people in the South peacefully seeking self-government as belligerent public enemies, who, when finally conquered with fire and sword, deserved no more than eternal contempt and suspicion. He further proclaims the North’s “right to hang them as murderers and pirates,” and “whatever rights are left to them besides the rights of war will be such as we choose to allow them.  He believed the Southern States had forfeited their legal status in the Union they departed, only to be dragged back in as conquered territories and a people entitled to no rights.

As far as loyal Union men of the South are concerned, and they were numerous, Lincoln refused their wise counsel to abandon Fort Sumter in early 1861 to allow time and diplomacy for the settlement of sectional differences. They, as well as former President James Buchanan, suggested calling a Constitutional Convention of the States as the proper solution for disputes. These measures would have saved a million lives, and quite possibly the Union.
Bernhard Thuersam, www.Circa1865.org   The Great American Political Divide

Belligerent Public Enemies in a Territorial War

“Lincoln’s plan of reconstruction was built on a concept of a wartime President’s powers so extended as to transcend the points of reference of earlier chief executives. It was military reconstruction, and it was the most direct imaginable intervention of the will of the national government into the internal structure of the State’s. In terms of power, Lincoln’s reconstruction plan was radical indeed.

The fact is that Lincoln enjoyed the services as mentor – with respect to the war-swollen power potentials of his office – of a prominent champion of Radical Republicanism, an old-line Boston abolitionist, William Whiting.

Brought into the War Department as its solicitor – primarily in order to prepare briefs that the government employed to fend off suits – in Northern States and in border areas, alleging the unconstitutionality of conscription and internal security measures – Whiting was the most learned lawyer in the United States in matters of the international laws of war.

He became the natural source of legalisms in support of the reconstruction program that the President was gradually evolving out of information he gained primarily from Army and War Department sources.

Here is Whiting’s prophetic essay of July 28, 1863, issued as a letter to the Philadelphia Union League, under the title, “The Return of the Rebellious States to the Union.” Note its harmony with the Lincoln plan as issued the following December, so far as the assumption of national powers is concerned, as well as its expression of concern with respect to the untrustworthiness of a conquered South.

“As the success of the Union cause shall become more certain and apparent to the enemy, in various localities, they will lay down their arms, and cease fighting. Their bitter and deep-rooted hatred of the Government, and of all the Northern men who are not traitors, and of all Southern men who are loyal, will still remain interwoven in every fiber of their hearts, and will be made, if possible, more intense by the humiliation of conquest and subjugation.

The foot of the conqueror planted upon their proud necks will not sweeten their tempers; and their defiant and treacherous nature will seek to revenge itself in murders, assassinations and all other underhand methods of venting a spite which they dare not manifest by open war, and in driving out of their borders all loyal men.

To suppose that a Union sentiment will remain in any considerable number of men, among a people who have strained every nerve and made every sacrifice to destroy the Union, indicates dishonesty, insanity or feebleness of intellect.

Beware of committing yourselves to the fatal doctrine of recognizing the existence, in the Union, of States which have been declared by the President’s proclamation to be in rebellion. For, by this new device of the enemy – this new version of the poisonous State rights doctrine – the Secessionists will be able to get back by fraud what they failed to get by fighting. Do not permit them, without proper safeguards, to resume in your counsels, in the Senate and in the House, the power which their treason has stripped from them.

Do not allow old States, with their Constitutions still unaltered, to resume State powers.

The rebellious districts contain ten times as many traitors as loyal men. The traitors will have a vast majority of the votes. Clothed with State rights under our Constitution, they will crush out every Union man by the irresistible power of their legislation. If you would be true to the Union men of the South, you must not bind them hand and foot, and deliver them to their bitterest enemies.

Having set up a government for themselves . . . they were no longer mere insurgents and rebels, but became a belligerent public enemy. The war was no longer against “certain persons” in the rebellious States. It became a territorial war; that is to say, a war by all persons situated in the belligerent territory against the United States.”

(The Radical Republicans and Reconstruction: 1861-1870, Harold M. Hyman, Bobbs-Merrill Company, 1967, excerpts pp. 91-95)