Government of, by and for the People Almost Perishes from the Earth.
By the 1850s the United States was pretty much the last Western country to allow slavery in the homeland, and Americans were increasingly embarrassed by this. The northern states had repudiated slavery several generations earlier, between 1777 and 1804, which put them on the same page as the rest of the modern world. Individual opinions on the subject ran the spectrum of course. Some Northerners opposed it on economic grounds (unpaid labor drove down wages), some on racist grounds (keeping black people out of the community regardless of their legal status) while others opposed it on moral grounds (slavery was just wrong, period) but at the very least, most northern voters wanted to keep slavery quarantined in the South. They may have been willing to let it stand where it already existed but hoped it would die out eventually.
Instead of dying out, slavery actually expanded in the 1850s. For decades, the only way to get all sides to agree whenever a newly settled territory petitioned for statehood was to add new slave states and free states at an equal rate to keep the two sections evenly balanced. Now, in order to secure southern support for legislation, Congressional Democrats such as Senator Stephen Douglas of Illinois let slavery be introduced into unsettled territories where it had been outlawed for years, making it increasingly difficult to create any new free states.
Rather than lie low and not call attention to themselves, the slaveholders claimed that slavery was a positive good and insisted that the rest of the country acknowledge this as well. The vehemence with which the South defended slavery went beyond the simple economics of cheap labor. Southerners feared that freeing the slaves would leave millions of unsupervised brutes at large in their communities, menacing their women, homes and chickens. Even among people too poor to own them, slaves were as essential to the Southern way of life as their Bibles, guns, cotillions, horses or hunting dogs.
Any attack on slavery was an attack on the South’s shared culture and traditions. Keeping slavery became a matter of both survival and honor.
Following the new Fugitive Slave Act of 1850, which required all Americans to assist in catching runaways, slave hunters brazenly scoured the free states hunting escaped slaves, arresting and deporting many with the support of the federal government over the opposition of friends, neighbors and local governments. When the runaway slave Anthony Burns was captured in Boston and dragged back to his Virginia owners in May 1854, federal troops had to be mobilized to keep angry abolitionist mobs from setting him free while he was jailed and escorted to the docks. Meanwhile, in the Dred Scott decision of 1856, the Supreme Court ruled that living with his owner for several years in a free state was not enough to set a slave free. The court even questioned whether it was legal to ban slavery anywhere at all since this interfered with a person’s right of property.
During the late 1850s, a large gang war erupted in the Kansas Territory between rival settlers from free and slave states over which voting bloc the new state should belong to. Within a couple of years, somewhere between 50 and 200 men were shot dead, hacked apart, stabbed, hanged or beaten to death in attacks between opposing settlements. In 1859, John Brown, an abolitionist guerrilla of the Kansas conflict, tried to bring the war east with an attack against the federal armory in Harper’s Ferry, Virginia, hoping to seize enough weapons to arm a slave revolt. The raid was easily contained and snuffed out by federal troops. Brown was duly tried and hanged by the state of Virginia, but adoring mobs greeted his coffin like the relics of a saint as it was shipped northward for burial.
As slavery became the most contentious issue of the day, the new Republican Party coalesced out of the “free soil” factions of the Whigs and Democrats specifically to stand against the expansion of slavery. The South had dominated American politics so far. Eight of America’s first 12 presidents had come from slave states. Now after so many outrageously pro-slavery changes infected national policy, the Republicans quickly rose to be the dominant party in the free states. With northern population rising quickly (often because new immigrants from Europe preferred to settle in the North where workers were actually paid for their labor), the Southern states saw abolitionist Congressional majorities approaching over the horizon and wondered if it might be best to start their own country, beyond their reach.
At first the dominant Democratic Party tried to duck the issue of slavery, but the southern members of the party insisted on a vocal and wholehearted pro-slavery stance rather than the quietly apathetic stance favored by the northern membership. This forced a showdown that split their party into northern and southern wings for the 1860 election. Meanwhile the southern remnants of the Whigs ran their idea of a compromise candidate. The schism probably didn’t matter, because when the election came, the Republicans won the North by a solid majority, and North was now populous enough to elect any president it wanted if it voted as a bloc. The Republican Abraham Lincoln handily won in the Electoral College. The slave states immediately started voting themselves out of the Union before he could take office. They then combined into the new Confederate States of America.
Confederate militia quickly and bloodlessly seized federal property all over the South, but the federal garrison inside Ft. Sumter in the harbor of Charleston, South Carolina, refused to surrender to the surrounding militia. In April 1861, a quick bombardment changed their minds, but it also sparked a war with Washington.
The Slaveholders’ Rebellion
Was secession legal under American law? The strongest argument in favor cites the Tenth Amendment, in which any power not specifically given to the federal government belonged to the states or the people. Since nothing in the Constitution specifically addresses secession, then it would seem to be a power that belongs to the states. It’s not a bad argument, but the rebels would have had a better point if they hadn’t invoked it in order to defend slavery.
The secessionists believed that the states pre-existed the federal government and had original sovereignty. Since they had voted to enter the union, they should be allowed to vote to leave. Unionists pointed out that almost all the states after the original 13 were created by Congress from territories and were never sovereign. (Exceptions being Texas, maybe California and later Hawaii) Even among the original 13, only four (Rhode Island, New Hampshire, South Carolina and Virginia) had made any official move to establish their individual independence from Great Britain before the Continental Congress declared it for everyone all at once on July 2, 1776. The states’ rights counterargument is that all states are legally equal, so the later states have all the same rights as the original thirteen. If even one state has the right to vote itself out (be it Texas, Hawaii or Rhode Island), then all 50 have it.
A number of legal arguments exist in favor of the Unionist side as well. Indeed, after the war in the 1869 case of Texas v. White, the US Supreme Court declared secession to be officially illegal. Shortly after secession, the State of Texas sold some property it was holding (specifically U.S. Bonds) to New York investors in order to raise money for the war effort. After the war, the new Unionist government of Texas wanted the bonds back, claiming that the rebel government had no lawful authority to make the sale. The Supreme Court noted that the Articles of Confederation called the United States a “perpetual union.”, and the 1789 Constitution follows this by establishing “a more perfect union”. By approving the Constitution, the states were voluntarily joining a pre-existing nation that had already declared the union indivisible. This meant that Confederate Texas was an illegitimate government. While such a government could still oversee normal activities that had been legal all along (deeds, wills, marriages, lawsuits and such), any activity by that government for illegal purposes (such as raising money to fight a rebellion) was void.
Other arguments: The states had agreed in writing that the Constitution was the supreme law of the land, which it couldn’t be if the states are allowed to leave at will. The constitution also directs all disputes between states be decided by the federal government, so at the very least, the south should have negotiated with Congress for a mutually agreeable divorce instead of just skipping out and leaving the North with bills to pay and children to raise.
Under the social contract in a democracy, everyone - well, everyone that matters - is given an equal opportunity to control policy, but in exchange, everyone agrees to work within the system and accept electoral loses with dignity and grace. Secession was dangerous to democracy because it would set the precedent that losers could just revolt if an election didn’t go their way. Pretty soon, the nation would crumble into squabbling little tyrannies like Spanish America. The main worry of the Unionists was whether a nation can survive very long if everyone is allowed to do whatever they wanted.
Most history books delineate the Confederacy with more certainty than they should. Leaving aside the question of whether secession was legal at all, we also have the question of whether some secessions were more valid than others. Although most history maps color 11 states as members of the Confederacy, the CSA itself counted 13 member states in its Senate and on its flag, and the United States government only forced 10 states to go through post-war Military Reconstruction.
Maryland, Kentucky and Missouri are generally counted as “border states” – slave slates that remained loyal to the Union. Indeed, federal forces secured military control over the state capitals early in the war and legislative majorities clearly preferred the Union, but in the case of Missouri and Kentucky, secessionist minorities of the state legislatures fled southward to temporary capitals where they voted their states into the Confederacy. In Maryland, federal troops managed to quickly arrest enough secessionist legislators to keep them from doing the same. Meanwhile, enough Virginia and Tennessee lawmakers stayed loyal to the Union to form Unionist state governments and Congressional delegations in Washington, despite secessionist majorities in the state capitals voting them into the Confederacy.
Delaware also counts as a border state, but only on a technicality. Slavery was legal, but they had few actual slaves so Delaware wasn’t going anywhere. The state legislature had considered but defeated gradual emancipation on several occasions over the years, and it had come within one vote of passing in both 1803 and 1847. The recognition that Delaware was only one vote away from upsetting the careful balance of slave and free states worried the South and gave them yet another reason to get out while they could. The repeated failure of this essentially Northern state to free its last few thousand slaves (1.6% of its population in 1860) is another reminder of how difficult a peaceful solution to this problem could be. Ultimately Delaware procrastinated long enough for the decision to be made for them by the 13th Amendment in 1865.Ⓐ
Democracies at War
The Confederates had no specific problem with the American Constitution so they copied it mostly verbatim, except their version called a slave a slave and not a “person held to service or labor”, as the United States Constitution did. The Confederacy very specifically protected the right to take slaves into any other state, and they made it impossible for the new confederation to abolish slavery as a whole until every state abolished it individually. In a typically Southern triumph of bravado over good sense, the Confederacy set up its capital at Richmond Virginia, just behind the front lines within easy taunting distance of Washington.
Both warring countries had to face the unprecedented problem of holding democratic elections while fighting for their survival, and they both pulled it off tolerably well. Outside the war zone, the elections for the U.S. Congress went ahead on schedule without interference in Novembers of 1862 and 1864. The Confederacy held two Congressional elections, in November 1861 before the war had really cranked up, and in November 1863 after a lot of fighting had thrown the country into turmoil. With federal troops in the way, turnout among Confederates in 1863 was generally low; scheduling was irregular, and many districts had to skip the formalities. Districts retaken by the Union often had their Confederate Congressmen selected by refugees and soldiers voting absentee since the actual residents were under enemy occupation. Because the Confederates, like the Founding Fathers before them, considered partisan politics to be unseemly, policy disagreements within the Confederacy never formalized into organized parties; however, the elections were freely contested. In Georgia, for example, nine of the ten incumbent Congressional representatives were defeated at the polls in 1863, and the governor faced (and beat) two challengers.Ⓑ In spite of backroom chatter about the need for a dictator to seize power in Washington and guide the nation through the crisis, the United States held all its elections on schedule. At various points early in the war, the Union Army of the Potomac was suspected of scheming to take over Washington and put one of its favorite generals -- George B. McClellan or Joseph Hooker -- in control, but that just turned out to be idle rumors.Ⓒ
When General George B. McClellan finally did attempt to replace Lincoln as president, he worked within the system as a civilian and ran as the candidate of the Democratic Party. During the presidential election of November 1864, the future of the Union, slavery and the war was openly debated, freely contested and conclusively decided in favor of letting President Lincoln continue down the path he was on. This was a victory for democratic governance that many at the time did not expect.
Because they were fighting for their very existence, both sides regularly violated personal rights. Both governments, North and South, occasionally arrested outspoken legislators and editors, seized property, searched travelers, ignored judicial process and broke up demonstrations by threats and force. The American people, accustomed as they were to living in a free land, were outraged by these affronts, but it’s worth mentioning that it could have been a lot worse. No one was executed simply for being on the wrong side. Most prisoners were exchanged. Killing and raping civilians were prohibited and punished. Whenever the government harassed someone for a purely political offense, there was usually enough of a public outcry in the press and Congress to force the government to back down. Even the long, bitter campaigns of destruction like Sherman’s March through Georgia targeted public buildings and the industrial infrastructure, leaving most private homes untouched. Compared to, for example, the Indian wars on the frontier or the civil war fought in Mexico about the same time, the American Civil War was rather civil. Ⓓ
Ⓐ Patience Essah, A House Divided: Slavery and Emancipation in Delaware, 1638-1865 (University of Virginia Press, 1996) pp.154-161 Ⓑ David Stephen Heidler, et al., Encyclopedia of the American Civil War: A Political, Social, and Military History (W. W. Norton & Company, 2002) p.644. George C. Rable, The Confederate Republic: A Revolution Against Politics (Univ of North Carolina Press, 1994) pp.214-235 Ⓒ General George B. McClellan, letter to his wife, July 26, 1861: “I find myself in a new and strange position here—[President], Cabinet, Genl Scott & all deferring to me—by some strange operation of magic I seem to have become the power of the land. ... I almost think that were I to win some small success now I could become Dictator or anything else that might please me—but nothing of that kind would please me—therefore I won't be Dictator. Admirable self-denial!” Abraham Lincoln, letter to General Joseph Hooker, January 26, 1863: “I have heard, in such way as to believe it, of your recently saying that both the Army and the Government needed a Dictator. Of course it was not for this, but in spite of it, that I have given you the command. Only those generals who gain successes, can set up dictators. What I now ask of you is military success, and I will risk the dictatorship.” Ⓓ Mark E. Neely Jr, The Civil War and the Limits of Destruction, (Harvard University Press, 2007) describes many ways in which the harshness of the war has been exaggerated.