Court packing, 1860s style

   In February 1861, two pro-secession state senators from western North Carolina, Marcus Erwin and W. W. Avery, issued an address to the people of their districts. The address lamented the election of the “black Republicans,” and with the secession of Southern states, the loss of seats (and power) in the halls of Congress for the Southern slave-owning states that remained. Then, the pair turned their attention to courts: “The Supreme Court is the only refuge left us. But that will not avail us. Because that court construed the Constitution so as to protect the rights and property of southern men, the Black Republicans have cursed it, and vowed to destroy its present organization. Mr. Seward, who has accepted the principal post in Mr. Lincoln’s cabinet, and who will be the governing and directing spirit of his administration, has declared that the Supreme Court must be reconstructed on account of its decision in favor of the South, in the Dred Scott case. That means that the first measure of Mr. Lincoln’s administration will be to pass a law organizing the court in such a way as to enable them to appoint Black Republican judges enough to control the court against the South, and to reverse all its previous decisions in favor of the South.”[1]

   The important person in the debate was William H. Seward. A former two-term New York Governor, Seward was serving his second term as a United States Senator when the Dred Scott v. Sandford case was decided upon in 1857. In March 1858, Seward, in a speech in the Senate, decried the court’s decision. The court could reverse its decision, or Congress could “reorganize the Court, and thus reform its political sentiments and practices, and bring them into harmony with the Constitution and the laws of nature.”[2] President Buchanan was angry, and Chief Justice Roger Taney later told a friend that had Seward won the presidency instead of Lincoln, Taney would have refused to administer the oath to the new president.[3] Others agreed with Seward. Zachariah Chandler of Michigan found the Dred Scott ruling “monstrous.” The Republican party meant to “annul the Dred Scott decision, the stump speech of Taney…” and reorganize the Supreme Court.[4]

   Many in Washington, D.C., were alarmed by Seward’s proclamation. D.Q.C. Lamar, serving the people of Mississippi in the U.S. House, stated he heard Seward’s speech in person. Lamar believed that once the Republicans assumed power, the Supreme Court would be remodeled “in order that its decisions should no longer confirm to us what we believe to be the constitutional rights of the South.” As Seward spoke, as he “uttered this atrocious sentiment, his form seemed to dilate, his pale, thin face, furrowed by the lines of thought and evil passions, kindled with malignant triumph, and his eye slowed and glared upon southern Senators as though the fires of hell were burning in his heart.”[5]  Others in Congress spoke out in favor of the court, denouncing the Republicans. These included senators Jefferson Davis-Mississippi; Judah P. Benjamin-Louisiana; Stephen Douglas-Illinois; James A. Stewart-Maryland; George E. Pugh-Ohio; and, Joseph Lane-Oregon.[6]

   The news of Seward’s proposal to remake the court made its rounds across the South in 1860. It was an election year, and many felt Seward would get the nod for the Republican presidential candidacy. One editor in Louisiana told his readership that Seward had “announced that his party would soon reorganize the Supreme Court in such a manner as to avoid disagreeable decisions…”[7] The Texas Republican considered Seward an “arch Tallyrand” declaring that the Supreme Court had to be reorganized.[8] The Times-Picayune noted in April 1860 that Roscoe Conkling was on the floor of the US House calling for the “reorganization of the Supreme Court,” as “one of the auspicious promises of the Republican victory” in the coming election. [9] In Nashville, Tennessee, the day before the election, one speaker told the crowd that “The North is bent on abolishing slavery by revising the Supreme Court and then reversing the Dred Scott Decision…”[10]

US Supreme Court, ca.1864 (Wikimedia Commons)

   Once the election was over, the Republicans gained the presidency, and a Republican-led coalition controlled the House, while the Democrat’s control of the Senate was five seats less. As states considered secession, the idea of a reorganized court haunted many an editor. “What, then, becomes of this much-vaunted bulwark of Sothern constitutional rights?” a Louisiana editor asked. “The Supreme Court will become an Abolition Court, and will give judicial sanction and authority to whatever oppressions and outrages may be perpetrated upon the South by an Abolition Congress and an Abolition president!”[11] The Republican Banner told its readership that the new administration planned to fill the Supreme Court with “his [Lincoln] creatures, as vacancies may occur from death or otherwise… If vacancies should occur too slowly in the Supreme Court, and he should have a majority in both Houses of Congress, he might even add to its number, so as to give his party a majority…”[12] The Richmond Enquirer noted the same. Citing a speech that Seward gave at the Cooper Institute in New York in November, Seward planned to set the wheels in motion to reconstruct the Supreme Court in short time.[13]

    Associate Justice John McLean died in April 1861, giving Lincoln the opportunity for his first nomination. For those border states still in the Union, there was cause for great alarm. “The vacancy in the supreme court cannot be filled unto the next session of Congress. It is not impossible an effort will be made then to reorganize judicial districts,” the Memphis Daily Argus informed its readers.[14]

   Eventually, Lincoln did appoint five new justices to vacancies, and Congress did, in the summer of 1862, redraw the boundaries of the districts, compressing the five Southern districts into two. In March 1863, Congress went further, creating a tenth district, thus adding a tenth justice to the bench (this seat was abolished in 1869). Two of Lincoln’s nominations, Salmon P. Chase and Samuel F. Miller, were confirmed the same day they were nominated. Noah H. Swayne’s confirmation took three days, Stephen J. Field’s took four days, and David Davis’s confirmation took seven days. In the end, William H. Seward and Abraham Lincoln were able to reorganize the Supreme Court in a way that benefited their political party.[15]

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[1] Weekly State Journal,  February 20, 1861.

[2] The Works of William H. Seward, 4:594-95.

[3] Stahr, Seward: Lincoln’s Indispensable Man, 172.

[4] “Acquisition of Cuba. Speech of Hon. Zachariah Chandler, of Michigan, in the Senate of the United States, February 17, 1859,” 5.

[5] Congressional Globe, quoted in Bancroff, The Life of William H. Seward, 1:504.

[6] Warren, The Supreme Court in United States History, 2:329.

[7]  Sugar Planter January 21, 1860.

[8] The Texas Republican, February 11, 1860.

[9] The Times-Picayune April 26, 1860.

[10] Nashville Union and American, November 4, 1860.

[11] The New Orleans Crescent, November 21, 1860.

[12] Republican Banner, November 27, 1860.

[13] Richmond Enquirer, November 13, 1860.

[14] Memphis Daily Argus, April 4, 1861.

[15]  https://www.scotusblog.com/2013/07/the-first-court-packing-plan/

The Strange Cases of William Marsh, Carter County, Tennessee

Louis Brown, in his book on the Salisbury Prison, has a long list of civilian prisoners incarcerated at the North Carolina stockade. One of those men listed is William Marsh. In 1860, Marsh was living in Elizabethton, Carter County, Tennessee, working as a hatter. Marsh was twenty-four years old, married to Ellen, with two children. They were all born in Virginia. His personal estate was only worth $50, so being a hatter was obviously not a lucrative job in mid-nineteenth-century Elizabethton.

In 1864, Marsh wrote Andrew Johnson, then serving as a representative of Tennessee in the United States Senate, explaining that he was once again “under the Stars & Stripes,” albeit by “peculiar circumstances.” Marsh explained that he was a friend of Dan Stover, took an active part of the 1860 presidential election, and was a member of the East Tennessee Convention. In September 1861, he visited his parents in Virginia, where he was arrested for disloyalty. He was first confined in Libby Prison in Richmond, Virginia, and then sent to the prison in Salisbury. Over the next nine months, Confederate officials repeatedly offered Marsh the opportunity to take the Oath, which he declined, until he felt he was “compelled to take it to save life as my constitution was fast giving way under the treatment received.” In July [1864?], Marsh stated he was “arrested” and sent to a regiment in John C. Breckinridge’s division. When he arrived with his regiment, Marsh was sick, and left at a house, “confined to my room with a fever.” He was afraid that once the troops returned, he would be arrested again, and wanted Johnson to do something to keep him out of the Confederate army. The letter is dated September 24, 1864, Valley of Virginia.

At some point, it appears that Marsh was captured by Federal forces. In October 1864, he was discharged from the Old Capitol Prison in Washington, D.C. He apparently got a job working at the wharf on G Street in Washington, D.C. It seems, maybe in his excitement over being released from confinement, he indulged a little too much one evening, and his employer found that he had dropped his copy of his Oath of Allegiance to the Confederacy. Marsh’s boss had hired Marsh, “a Confederate refugee… through sympathy.” The official wrote that Marsh swore he had not taken such an Oath (prior to losing his Oath). What happened after that point in time is unknown. [1]

There is a little more to story. William Marsh’s name appears on a list of “Union Men Confined at Salisbury, N.C.” in the New York Tribune, July 29, 1862. While there is no information with this article, there is a letter, in the Official Records, from Brig. Gen. James S. Wadsworth (US), written on August 10, 1862, stating that an article from the New York Tribune was being enclosed, and that Wadsworth was holding thirty Confederate citizens from the area between Fredericksburg and Washington, D.C., “as hostages.” [2]

What became of William Marsh? It seems that he hired himself as a substitute for John C. Wellbanks, and was mustered into Company C, 1^st Delaware Infantry. He was mustered in as a private on December 24, 1864, then promoted to sergeant on January 24, 1865. In June, he was promoted to second lieutenant and transferred to Company F. Marsh was mustered out of service on July 12, 1865.  Marsh apparently did not return to East Tennessee. He is listed on the 1870 US Census as a resident of Fort Chiswell, Wythe County, Virginia. It appears that his first wife, Ellen, passed in the previous decade. He was, in 1870, married to Susan V. Marsh and had four children at home. In 1880, he was in Surry County, North Carolina. According to a family history chart on Ancestry, William Marsh died on April 2, 1893, in Kingfisher, Oklahoma, and he was buried in the Bob Marsh Cemetery, Grayson County, Virginia.

Civilians arrested by the Confederate government for disloyalty is a seldom discussed topic. Mark Neely Jr., writes that there were at least 4,108 political prisoners arrested during the war.[3] It would be interesting to find additional information on Marsh, namely, what led to his arrest. Maybe those records will turn up one day.

 

 

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[1] Case Files of Investigations by Levi C. Turner and Lafayette C. Baker, 1861-1866.M797, Record Group 94, NARA. Some of Marsh’s records were microfilmed with those of Adam Mohr.

[2] Official Records, Series 2, volume 4, 368.

[3] Neely, Southern Rights, 1.

Battle of the Bands

5th Virginia Infantry band
(Military Images, 1983)

   Music has always played an important part of military life, from the drums that woke them up in the morning or the brass bands that serenaded the soldiers off to sleep. As Robert E. Lee once famously said: “I don’t believe we can have an army without music.”[1] Musicians were not often under fire, but they did wage, on occasion, their own battles of the bands against the tooters on the other side.

   One such event took place on the eve of the battle of Murfreesboro (Stone’s River). It was December 30, 1862. Skirmishers had plied their deadly trade that day, as the armies moved into position. That night, the bands began to play. A Southern band struck up “Bonny Blue Flag,” which was answered by “Hail, Columbia,” and then “Yankee Doodle.” After the dueling went on for some time, one band began to play the haunting strains of “Home, Sweet Home,” with bands on each side joining in. “We could hear the sweet refrain as it died away on the cool frost air,” recalled a member of the 19^th Tennessee Infantry. This scene would be played out in different camps throughout the war.[2]  

   Just a couple of weeks earlier, a similar event occurred on the banks of the Rappahannock River, near Fredericksburg in Virginia. A Confederate band played “Dixie,” followed by a Union band playing “John Brown’s Body.” Then came “The Bonnie Blue Flag” and “The Star-Spangled Banner.” After a few moments of silence, a lone Federal bugler played the notes of “Home, Sweet Home.”[3]

   On May 2, 1863, as the battle of Chancellorsville got underway, Confederate artillery under Jubal Early dueled with Federals. One Federal officer noted that that during the bombardment “from the rebel lines came the clear notes of a band playing the air of ‘Dixie,’ a favorite tune with the Confederates. Three or four times they played it through, and then stopped. In a moment, a band in our own army commenced the ‘Star Spangled Banner.’”[4]

   During the siege of Vicksburg, the commander of Waul’s Legion (Texas) instructed E. W. Krause to play for the men, trying to raise their spirits. The Legion band began to play “in a very patriotic air ‘Dixie,’” to which a Federal band responded with “a very rude and unharmonious, double Forte accompaniment.” Federal artillery lent their music, “directed at the impudent bank in which we were sheltering.” Krause wrote that the practice was continued throughout the siege.[5]

   During much of 1864, the armies were close to each other. At daylight on July 4, Federal bands outside Petersburg shattered the early morning stillness with “a perfect hurricane of national airs.” The Confederate bands soon replied, with each side cheering their tunes, while groaning at those of the enemy. “After sundown our brass bands and those of the enemy indulged in a musical duel,” wrote a member of the Donaldsonville Artillery. 6 In the outskirts of Atlanta, on August 14, Washington Ives, of the 4^th Florida Infantry, recalled the “The Bands on both sides play every evening and as a band on either side plays, the partizans begin to yell. Three nights ago after the Fed. & Reb. had played several times for each other the troops on both sides began yelling. . . during which a great many men picked up their guns and accoutrements and jumped into the fortifications thinking the enemy was going to charge us.” [7]

   There are undoubtedly scores of other accounts and admittedly, these few jottings just scratch the surface. These tunes inspired men, as demonstrated by the account of the soldier in the 4^th Florida. The bands could be even more important in combat. Making music and making war might seem incompatible. In the end, the music played in camp by bands South and North had a profound impact not just in the moment, but for generations.

  

[1] Clark, NC Troops, 2:399.

[2] Daniel, Battle of Stones River, 68.

[3] Barton and Logue, The Civil War Soldier: A Historical Reader, 126.

[4] Mackowski and White, Chancellorsville’s Forgotten Front,

[5] Woodworth and Grear, The Vicksburg Assaults, May 19-22, 1863, 86

[6] Greene, A Campaign of Giants – The Battle for Petersburg, 1:345

[7] Sheppard, By the Noble Baring of Her Sons, 194.