Was secession legal in 1861? In order to answer that question then and now one would have to be an expert on U.S. Constitutional Law, and even then the interpretation of what’s written is not clear, providing for arguments in favor of secession as well as against. Indeed, that’s why we have the U.S. Supreme Court, and those folks usually don’t always agree either.
In the nineteenth century, the American Civil War became a referendum on slavery in the United States, but it didn’t start out that way, or at least neither North nor South would admit it. When secession came in 1861 Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Southerners further argued that they had entered the Union voluntarily without coercion and that they should be allowed to likewise leave the Union and pursue their own self-determination.
U.S. President Abraham Lincoln argued that the Constitution was neither a contract nor an agreement between sovereign states, and rejected secession as unconstitutional based on Article 1 of the 10th Amendment of the U.S. Constitution that stated, “No State shall enter into any Treaty, Alliance, or Confederation”, but that the intent of that clause was really that “No State shall enter into any Treaty, Alliance, or Confederation <with another country with which the United States is at peace>”. No consideration by the founding fathers had been given to the prospect of a civil war.
So what did the Constitution say about states’ rights?
Amendment 10 of the Constitution states,
“The federal government possesses only those powers delegated to it by the United States Constitution. All remaining powers are reserved for the states or the people.”
Prohibition of secession by a state was not among the powers of the federal government in 1861. It’s not that the founding fathers didn’t think of it. In fact there was a strong movement to prohibit a state from secession as far back as the Constitutional Convention in 1787, but it was defeated on the grounds of state sovereignty and the fear that the use of force by the federal government would anger other states and ultimately contribute to the country’s own wholesale dissolution.
In 1861 popular sentiment, even among the Northern Democratic and Republican political parties, as well as most Northern newspapers, maintained the position that the Southern states should be allowed to secede peacefully. Moreover, both North nor the South were mistrustful of the federal government. How was the act of secession by the Southern States against the federal government, if based on tyranny and despotism by the federal government, any different from the rebellion of the American colonies in 1776?
Nevertheless, once U.S. President Lincoln knew that war was inevitable, he purposely waited until the South fired the first shot, which occurred when Fort Sumter was bombarded by Confederate forces on April 12, 1861 in Charleston Harbor, South Carolina. Fifteen days later on April 27th he issued the order to blockade the American coast from Maryland to Texas. The first major land battle of the war was First Bull Run or First Manassas if you were from the South, on July 21st. The war lasted four years and took the lives of 620,000 people, and though the North was victorious, the war did not crush the Southern belief in the natural right of self-determination, and vestiges of those beliefs endure in the present-day United States.
Having said that, what if the Southern states had been allowed to secede without strife? Socially, the old cultural order of the South would have been maintained, including slavery, but most Southerners didn’t own slaves. The greatest proportion of slaves were the property of a handful of very wealthy southern planters. The average Confederate soldier fought for his farm, his family, his comrades, and for the southern way of life, which he saw far differently from that of the industrialized North.
The economic differences between North and South were stark, with the largely agrarian South and the largely industrialize North, but that difference would have been an economic advantage to both sides if the United States and the Confederate States had amicably become separate nations. As trading partners, one would have complemented the other economically. Perhaps most importantly, the South wouldn’t have become decimated and the rancor that grew from it between North and South and exists to this day as a result may have never developed.
Alas, slavery would have continued. Until 1862 the Confederacy had achieved victory after victory against Union troops. No one in the North continued to think that the war would be short and decisive in the Union’s favor. The Confederate government was building warships in England and trying to persuade the British to join the war on their side. Lincoln knew that he had to elevate the purpose of the war to the higher moral cause of slavery to ease the geopolitical pressure, but how could he make that move when the Union was losing the war? He got the chance in September, 1862, after the Battle of Antietam (also known as Mechanicsville in the South), near Sharpsburg, Maryland. Maryland was a border state which had not seceded from the Union, nor had slavery been abolished. This was a vicious battle, as more men were killed or wounded during the first twelve hours than on any other single day up until that time in American military history. Most military historians considered the outcome to be a draw in terms of men and materiel, but the Confederate forces under Robert E. Lee were forced to retreat back across the Potomac to Virginia. Had Lee been able to maintain his presence in Maryland, the capital at Washington D.C. would have been seriously threatened. Lincoln therefore declared Antietam a Union victory and seized on the opportunity to issue the Emancipation Proclamation on January 1, 1863.
The U.K. had virtually abolished slavery in 1833. Though there was great popular support for the Southern cause in the United Kingdom, the official position of the British government was to remain neutral, subject to the eclectic set of laws of the day. Britain’s prime minister Henry John Temple, known as Lord Palmerston, considered “the traffic in human flesh to be one of the world’s most despicable crimes”.
Without the occurrence of the Civil War, slavery would have continued, but for how long before it collapsed under its own moral weight, social pressures, and the coming industrial revolution? On the other hand, one might reasonably argue that for the slave, one more day was one too many, and that the war was therefore necessary.