The guns of the War Between the States fell silent a century and a half ago, but the verbal and written battles related to that great conflict have continued. In the more than 50,000 books, as well as the countless thousands of additional articles and discussions which have taken place during the intervening years , it would seem that every conceivable aspect of the War has already been covered many times over. Yet new facets, facts, and controversies involving military and social issues continue to appear, and those who are clad mentally in Confederate gray or Union blue continue to fire their virtual volleys across the Mason-Dixon Line. There were, of course, many causes; economic, cultural, political, and social, ranging from unfair taxation to slavery, that created the underlying basis leading to the conflict.   Much had also been written in both the South and the North to contribute to the ever-widening chasm that was developing between the two sections of the nation. Some Northern authors, such as Frederick Law Olmsted of New York, the architect of Central Park, presented a more balanced view of the differences dividing the country. Law, however, as a reporter for the New York Times, actually traveled throughout the South in the 1850s prior to writing his insightful observations in the book, “The Cotton Kingdom,” and his views portrayed the differences in a stark, but rational and at times humorous, manner. Others, on the other hand, sought to merely propagandize these differences, with writers such as Harriet Beecher Stowe, a militant abolitionist who had never set foot in the South, producing nothing more than a biased and grossly distorted view of the South in works such as her books “Dread” and “Uncle Tom’s Cabin.” There is, though, one vital subject that has received far less attention in all of the post-war battles, even though it was the actual spark that ignited the flames of war; the secession of the Southern states. In this respect, it might be that the opening guns of the South’s fight for independence should not have been fired at Fort Sumter in Charleston harbor, but in a federal courtroom in South Carolina.

Let us then travel back in time to Charleston where, in December of 1860, a legally constituted convention of South Carolina’s concerned citizens once again debated, as they had once before in April of 1852, whether their State should withdraw from the Union due to a series of grievous violations being committed by the Federal government. Eight years previously, the State had deferred to the wishes of her sister states in the South, and did not exercise what she felt was her legal right to secede from the Union. In 1860, however, the State felt much more justified in taking such action due to what she considered were far greater economic and political pressures being exerted against her by the government in Washington. On December 20th, South Carolina’s Ordinance of Secession was enacted in which the State repealed its 1788 ratification of the United States Constitution and dissolved its legal association with the other states of the Union. In its justification of the act of secession, South Carolina cited, among other things, that the 1852 statute passed by the State Legislature legalizing the principal of secession had never been repealed, or even challenged, and that the prior act had upheld the State’s right to return to a position of full sovereignty under the spirit, if not the letter, of the Constitution by virtue the Tenth Amendment which guaranteed that all powers not specifically delegated to the Federal Government would be reserved to the States. The 1852 statute also contained similar charges and justifications as those presented against Great Britain in America’s 1776 Declaration of Independence, and definite parallels with that hallowed document were cited in the law.

But the question still remained, was secession actually legal? President-elect Lincoln contended prior to taking office that the Union had created the States, rather than the reverse, and that no State had a legal right to break its constitutional agreement with the Union. Furthermore, in 1869, Chief Justice Salmon P. Chase of the Supreme Court ruled, ex post facto, that secession was “constitutionally impossible,” and that no state had ever ceased to be a state within the Union. This, however, was a ruling handed down by an entirely Northern court which was headed by a chief justice who had been President Lincoln’s secretary of the treasury. It was also a decision that was rendered four years after the matter of secession had already been settled on the field of battle, rather than in the nation’s highest courts. On the other hand, there definitely were earlier precedents in favor of states espousing their right to secede from the Union. A case in point would be the New England states which, angered over issues dealing with the conduct of the War of 1812, held a convention in Hartford, Connecticut, from December 15, 1814, to January 5th of the following year at which the issue of secession was seriously considered and hotly debated. In the controversy leading up to the War Between the States, however, it is quite evident that while the South attempted to use the Constitution as a shield to justify its actions, the North used the same document as a sword to strike down the South’s efforts to gain its independence.

One must also bear in mind, however, that the prevailing antebellum views regarding the right of secession were far different than those held after the War Between the States. An excellent example of this can be found in a highly regarded and widely read treatise on the United States Constitution, “A View of the Constitution,” written in 1825 by a doctor of law from Pennsylvania, William Rawle. Dr. Rawle’s book became a standard legal work throughout America in the mid-19th Century, and was even used as a textbook at the United States Military Academy at West Point, where it was studied by many of those who would later be the South’s military and political leaders. While the first thirty chapters of Dr. Rawle’s book contain a detailed analysis of the Constitution, the final chapter deals exclusively with the right of a state to secede from the Union. The author clearly sets forth the view that, while it is not an action that should be taken except under the most extreme conditions, the question of a sovereign state deciding to sever its membership in the Union is one against which there is absolutely no prohibition in the Constitution, and is a matter which should be decided solely by a majority vote of the people in such state. This is the precise course followed by the citizens of South Carolina who, by an overwhelming majority, voted to ratify the State’s Ordinance of Secession. Six other Southern states, Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas in quick succession followed South Carolina’s lead early the following year by enacting their own Ordinances of Secession, and then rejoining under a new constitution to form the Confederate States of America.

In view of all of the foregoing, what if South Carolina had opted to lay a firmer legal foundation for its act of secession by presenting the matter before a federal judge on the basis of a Tenth Amendment action? This provision of the Constitution had never been tested in the courts before, and would not be until another seven decades later. Since the 1930s, the Amendment has been rarely used in Supreme Court suits, and its importance as a defender of state’s rights has been greatly diminished over the years. The Amendment’s role in the 1860s, however, was far more vital as a protector of state’s rights in general, as well as a legal justification of a state’s right to secede.   Therefore, after South Carolina’s Ordinance of Secession had been ratified by an overwhelming vote of its citizens, a brief on the constitutionality of such action could have prepared and brought before the U. S. District Court in South Carolina by some leading attorney in the State who was a proponent of secession, such as Robert Barnwell Rhett. The presiding federal judge for the Federal courts in both Greenville and Florence was Andrew Gordon Magrath and while he actually resigned his office in November of 1860 to protest the election of Abraham Lincoln, there is little doubt that he could have been persuaded to remain on the bench for a few more months in order to hear his State’s presentation to the court on such an important constitutional question as secession. There is also little doubt that Judge Magrath, who was later appointed as a Confederate district judge by President Jefferson Davis, and then elected Governor of South Carolina during the War, would have ruled against any argument presented by a representative of U. S. Attorney General Edward Bates in defense of the Union’s position. Had this happened, it would certainly have followed that the matter would have been quickly moved by the Federal Government to the U. S. Supreme Court.

At that time, the Court was presided over by one of President Lincoln’s most implacable foes, Chief Justice Roger Brooke Taney of Maryland, but since Associate Justice Peter Vivian Daniel of Virginia had died in office on May 31, 1860, and would not be replaced until President-elect Lincoln made new appointments to the Court, only three Southerners remained on the bench; Justices John Archibald Campbell of Alabama, John Catron of Tennessee, and James Moore Wayne of Georgia, Georgia, two of whom being from states which had already voted to secede from the Union. The other four Justices, Nathan Clifford of Maine, Robert Grier of Pennsylvania, John McLean of Ohio, and Samuel Nelson of New York, were all from the North.

The Lincoln Administration might well then have considered that the worst case scenario would be that, with four Northern Justices on the bench, and a like number from the South, the final outcome would be a tie vote. This, however, was certainly not a foregone conclusion, in that two of the Northern members of the Court, Justices Grier and Nelson, had voted with the majority in the highly controversial and politically charged slave issue of 1857, the pro-Southern Dred Scott decision. One or both of these justices might well have considered that a state, through the will of a majority of its citizens, had the constitutional right to dissolve its ties with the Union. Even if a tie vote had occurred, however, public sentiment might have swung to the side of the many in the North who were urging that war be averted at all costs, and the Southern states be allowed to depart the Union in peace. In such an instance, the Lincoln government, faced with a public relations dilemma, might have had serious second thoughts about immediately attempting to coerce the Southern states back into the fold by force of arms, and been more willing to at least enter into meaningful negotiations with the new Confederacy, rather than adopting the attitude that there was no such entity as the Confederate States of America. By a like token, the more militant fire eaters of the Confederacy might also have been given additional time to cool their martial ardor, and negotiate in good faith with their Northern counterparts in a mutual effort to avert war. Had this happened, and the North had not called upon the states to provide 75,000 troops to quell what it termed a rebellion, it is certainly problematic that the four additional states of Arkansas, North Carolina, Tennessee, and Virginia would not have felt compelled to secede and join the Confederacy. On the other hand, it is also entirely possible that those four states, along with the border states of Delaware, Kentucky, Maryland, and Missouri might all have considered that breaking away from the Union and joining a new nation based on ideals and principles better suited to their circumstances was the right thing to do under the prevailing conditions in the country.

While no one will ever know what might have been, as alternative history is one of mere conjecture, the fact remains that the entire question of secession’s constitutional legality as it existed in Nineteenth Century America is as important a subject today as it was a century and a half ago. It should also now be a subject to be considered more than merely an academic theory or a dusty footnote to history, but rather a viable possible battle that could have been fought in the courtroom, rather than on the field of battle.

John Marquardt

John Marquardt is a native of Connecticut but a Southerner at heart. After attending the University of Georgia, Marquardt realized the truth and the value of the Southern tradition. He served in World War II and spent his career in international trade. He currently resides in Tokyo, Japan. His Japanese wife loves Charleston and Savannah and admires Southern culture.

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