A Look at the Moral and Legal Elements Surrounding the Civil War

In the Orwellian tradition, he who controls the present, controls the past, and he who controls the past, controls the future. Every political system has a myth which is used to influence the beliefs of the citizens (or subjects) of that particular government. The myth of postbellum American government is simple and yet brilliantly effective: "In the American Civil War, the North fought to end slavery, and the South to preserve it." This statement contains one of the greatest fallacies of American history.

Unfortunately, the United States Government has applied its massive resources to propagate this myth. Schoolchildren study, some even memorize, Lincoln's speeches—and yet—probably, they have never heard of a man by the name of Jefferson Davis. The "Battle Hymn of the Republic" myth has been engrained in the conscience of the American polity. What has been forgotten, is that there are two sides to every story. Nevertheless, in his wisdom, Abraham Lincoln foretold the result of the propagation of this American myth: "You may fool all the people some of the time, you can even fool some of the people all of the time, but you cannot fool all of the people all the time."

The major argument propagated by defenders of the North is that slavery was legal in the South and (for the most part) illegal in the North. The question demanded is, "How can anyone seriously defend the South, when such an evil existed within their states?" Perhaps an examination of the history surrounding the [first] War for Independence is in order. Consider Samuel Johnson's irritation at the American colonists who threatened secession from Britain: "[H]ow is it that we hear the loudest yelps for liberty among the drivers of negroes?" The force of this argument is impossible not to feel. One must acknowledge that slavery was a dark moral stain on the seceding American colonies, all of which allowed slavery in 1776; similarly, it was a dark stain on the seceding Southern states, all of which allowed slavery in 1861. Nevertheless, immoral actions by a certain entity do not make other actions by that entity intrinsically immoral. If this were not so, mankind would be in a sad state indeed. If the American colonies and the Southern states had a moral right to secede, than, obviously, it would be morally wrong to attempt to prevent their secession through invasion. This holds even truer in the Southern case, than in the colonial case. First, the Southern states presented a moral and legal right to secede. Second, unlike the British, the North violated the civilized rules of warfare. Third, the North had no legal, moral, or precedential argument favoring their cause.

"No subject [slavery] has been more generally misunderstood or more persistently misrepresented." These words written by the President of the Confederate States of America ring ever so much truer today. Unbeknownst to many, Lincoln's (so-called) Emancipation Proclamation freed only those slaves he had no control over. The proclamation stated that the slaves were freed, "within any State or designated part of a State the people whereof shall then be in rebellion against the United States." In other words, Lincoln freed those he had no control over and left those he had control over in bondage. Indeed, the proclamation specifically stipulated that those in slavery in the excepted areas (the areas that were not in rebellion) were to be, "left precisely as if this proclamation were not issued." This meant that slavery was still legal in the six parishes of Louisiana that were under Yankee control at the time and the forty-eight counties designated as West Virginia. Moreover, ironic as it seems, the Northern General Ulysses S. Grant's wife held personal slaves during the war. In fact, these slaves were not freed under Lincoln's proclamation but rather under the Thirteenth Amendment passed after the end of the war. In an 1858 debate, Lincoln, made the following statement:

I will say, then, that I am not, nor ever have been, in favor of bringing about in anyway the social and political equality of the white and black races – that I am not, nor ever have been, in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races…. I, as much as any other man, am in favor of having the superior position assigned to the white race.

Indeed, a great deal of the Northern states and the Northern population agreed with Lincoln. The majority of Northern states passed laws prohibiting or harshly restricting

the entrance of "free blacks." New Jersey shut out blacks; Massachusetts prescribed flogging for black nonresidents who stayed longer than two months. Ohio, at one time, passed a law expelling the entire black population. A number of states erected constitutional barriers to the immigration of free blacks. Oregon's constitutional language was typical:

No free negro, or mulatto, not residing in this state at the time of the adoption of this constitution, shall ever come, reside, or be within this state, or hold any real estate, or make any contract, or maintain any suit therein; and the legislative assembly shall provide by penal laws for the removal by public officers of all such free negroes who shall bring them into the state, or employ or harbour them therein.

Northern hands were by no means clean when it came to the issue of slavery.

Of all the justifications for war, none is greater than the economic rationale. In the War for Southern Independence, the North's principal interest was to protect its economic well-being. Testifying to this, Thomas Cooper, president of South Carolina College stated, "We shall ere long be forced to calculate the value of our Union, to ask of what use is an unequal alliance by which the South has always been the loser and the North always the winner."

In the founding document of our great American Nation, Thomas Jefferson eloquently made the case that governments derive their just powers from the consent of the governed. Jefferson goes on to declare that the governed have a right to a government that disciplines itself to the will of the people. If the government does not do so, that government has no moral right to exist. Likewise, in ratifying its Constitution, Virginia clearly stated that it had the right to withdraw from the national union:

We, the delegates of the people of Virginia, duly elected,… in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby, remains with them and at their will: that, therefore, no right, of any denomination, can be canceled, abridged, restrained, or modified.

In the Kentucky and Virginia Resolutions of 1798, James Madison and Thomas Jefferson again echo these thoughts:

Resolved, that the several States composing the United States of America are not united on the principle of unlimited submission to their general government….

The argument that the South was morally and legally justified in withdrawing from the union is best summed up in the ex post facto words of General Robert E Lee,

We could have pursued no other course without dishonor. And sad as the results have been, if it had all to be done over again, we should be compelled to act in precisely the same manner.

If the colonies had lost the war with England, would that have made England right? Simply the fact that the North defeated the South, does not justify the North's invasion. It is evident in the writings of John Locke that, "Might does not make right." An aggressor does not gain any legitimate legal right by a successful military adventure. That is not to say the victorious North did not equate might with right. In the words of Supreme Court Justice Salmon P. Chase, "State Sovereignty died at Appomattox."

Nearly all American historiography after 1865 is nationalist and based on the assumption that slavery was the root cause of the war between the states. This myth demands refutation. A new historical perspective holding that the prescription of secession in 1860 was morally and legally correct and that it was the only cogent and benevolent solution to all the troubles confronting the union at the time is imperative to the refutation of America's "Battle Hymn of the Republic" myth:

When two men are about to come to blows, it is best to separate them. To write history from the assumption that the peaceful dissolution of the Union in 1860 was a good thing—nationalists, after all, assume that the dissolution of the Union under the Articles of Confederation was a good thing—would bring to light a vast array of facts, moral possibilities, and spectacular moral losses hitherto hidden from view. And it would open up political possibilities that are today closed off because the limits of politics are, in large part, the limits of historical self-understanding.