The United States government regarded the Confederacy not even as a de facto government, but merely as an organized rebellion with no status in international law. The Confederacy was conceded “some
belligerent rights . . . in the interests of humanity” so that the laws of war would apply to the conflict; but this concession did nothing to sanction the existence of the Confederacy as a sovereign state (Williams v. Bruffy, 96 U.S. 176, 184-187 (1877)). These principles are officially stated in J. Moore, A Digest of International Law, 8 vols. (1906) For a modern discussion of the
role the Civil War played in developing the international law of civil conflict, see Wright, The American Civil War, 1861-65 in R.
Falk, ed., The International Law of Civil War 30-110 (1971.
The Confederacy, like the United States, had both federal and state courts. On the federal level, the Confederate Supreme Court sanctioned by the constitution was never created because of sectional and political conflict. The only national law officer in the Confederacy was the Attorney General,
whose opinions therefore took on accentuated importance. For these opinions, see R. Patrick, The Opinions of the Confederate Attorneys General, 1861-1865 (1950), and for a biography of the leading Confederate attorney general, see E. Evans, Judah P.
Benjamin, the Jewish Confederate (1988). Some federal district courts were created, however, and sat in the individual states of the Confederacy. Their opinions were never
formally reported. On the state level, the court systems of the individual states continued without interruption, the only
difference in proceedings being that a new country, the Confederate States, was recognized as sovereign. The opinions of the state courts can be found, insofar as they are reported, in the official reports of the states for the years of the Civil War. Volumes 38 and 39 of the Alabama Reports, for instance, provide unbroken
coverage of the proceedings of the Alabama Supreme Court during the war years, mingling mundane civil actions with suits by the Confederate authorities to enforce conscription and federal (that is, Confederate National) taxation.
In the eyes of the United States, Confederate courts, as creatures of insurrection, had no existence–“they were as if they were not.” Nevertheless, insofar as courts in the Confederacy continued ordinary civil law business, apart from insurrection or war, their acts were accorded recognition as the ordinary acts of
civil government. “No one . . . seriously questions the validity of judicial or legislative acts in the insurrectionary States. . . where they were not hostile in their purpose or mode of enforcement to the authority of the National government. . .” (Horn v.Lockhart, 84 U.S. (17 Wall.) 570, 580 (1873)). In other words, the Confederate courts “were not,” but what they did often was.
I have been reading a very interesting book on the reasons why the Confederacy lost the War. Unfortunately, its sitting by my bedside, and I am at the office, So I can’t give you the correct title (something to the effect of “Studies in the Confederate Defeat,” a series of essays by scholars from Universities in the former Confederacy published in the 1960s). The primary reason why these scholars believe the Confederate cause failed was an ill-defined sense of nationalism. That is, the South and North, despite its societal differences, shared the same heritage and basic cultural acouetrements, and the citizens of the Confederacy were still “Americans,” fighting to preserve an economic system. It was eventually a difficult sell to fight, kill, die, and sacrifice for. Indeed, a majority of secessionists considered secession as the lesser of two evils, the first being the abolition of slavery. (Which, by the way, could not have been accomplished by normal constitutional process at that time; the war allowed the acceleration of the process).
I do not think the Confederacy could have succeeded even if they had remained pacifist. First, it was the threat of northern invasion that pushed Virginia, North Carolina, Arkansas, and Tennessee over the edge to secession, providing the CSA with the manpower and military leaders it needed to wage the war. Second, the CSA’s appropriation of Federal property (particularly military bases and equipment) is what sparked the Ft. Sumter crisis. The Federal government would have eventually sent troops in to “quell” the rebellion, even if just to reassert control over these federal bases of power. With Secession, war was inevitable.
I’ve always felt that the secessionists jumped the gun a little too early. With a little more planning, they probably could have gotten out of the Union peacefully. After Lincoln was elected and the Southern states decided it was time to go, they should have delayed and kept all their Representatives and Senators in Congress. They would almost certainly have had enough votes to pass laws guaranteeing individual states the right to secede. Then if they chose to leave, Lincoln would have been unable to use military force to stop them.>>>
I don’t think this sort of peaceable solution would have worked. Laws guaranteeing the “right to secede” would have only been passed after compromise, which would have required some sort of reparation from the seceding state to the rest of the union. Such laws probably would have required a consitutional amendment anyway - - in those days of difficult compromise, I doubt such a compromise could have happened.
What might have happened if the CSA had not resorted to armed conflict? I think that after things had cooled off, the Confederate states would have “negotiated” a “re-entry” into the Union which would have protected the right to slavery, perhaps with the compromise that there would be no further spread of slavery. The aforementioned book metnions that in 1963 or so, there was a growing peace movement in the South which wanted to accomplish just this goal.
I don’t think
“Its fiction, but all the facts are true!”