Was The Union Army'S Invasion Of The Confederate States A Lawful Act?

Was the Union Army's Invasion of the Confederate States a Lawful Act?

An Analysis of President Lincoln's

Legal Arguments Against Secession

by James Ostrowski

This paper, included in Secession, State, and Liberty (New Brunswick, N.J.: Transaction Publishers, 1998), edited by David Gordon, was delivered at the Mises Institute's conference on the political economy of secession. It is ©1998 by the Ludwig von Mises Institute. All rights reserved.

On 27 May 1861, the army of the United States of America (the Union) - a nation which had been formed by consecutive secessions, first from Great Britain in 1776, and then from itself in 1788 - invaded the State of Virginia,1 which had itself recently seceded from the Union, in an effort to negate Virginia's secession by violent force.

The results of the efforts begun that day are well known and indisputable: after four years of brutal warfare, during which 620,000 Americans were killed, the United States of America forcibly negated the secession of the Confederate States, and re-enrolled them into the Union. The Civil War ended slavery, left the South in economic ruins, and set the stage for twelve years of military rule.

Beyond its immediate effects, the Civil War also made drastic changes in politics and law that continue to shape our world 130 years later. Arthur Ekirch., Jr. writes:

Along with the terrible destruction of life and property suffered in four long years of fighting went tremendous changes in American life and thought, especially a decline in [classical] liberalism on all questions save that of slavery. . . .

Through a policy of arbitrary arrests made possible by Lincoln's suspension of habeas corpus, persons were seized and confined on the suspicion of disloyalty or of sympathy with the southern cause. Thus, in the course of the Civil War, a total of thirteen thousand civilians was estimated to have been held as political prisoners, often without any sort of trial or after only cursory hearings before a military tribunal.2

The Civil War caused and allowed a tremendous expansion of the size and power of the federal government. It gave us our first federal conscription law, our first progressive income tax, and our first enormous standing army; it gave us a higher tariff, and it gave us greenbacks. James McPherson writes approvingly:

This astonishing blitz of laws . . . did more to reshape the relation of the government to the economy than any comparable effort except perhaps the first hundred days of the New Deal. This Civil War Legislation . . . created the blueprint for modern America.3

Albert Jay Nock was more critical of the war's impact, especially on the Constitution:

Lincoln overruled the opinion of Chief Justice Taney that suspension of habeas corpus was unconstitutional, and in consequence the mode of the State was, until 1865, a monocratic military despotism. . . . The doctrine of "reserved powers" was knaved up ex post facto as a justification for his acts, but as far as the intent of the constitution is concerned, it was obviously pure invention. In fact, a very good case could be made out for the assertion that Lincoln's acts resulted in a permanent radical change in the entire system of constitutional "interpretation" - that since his time, "interpretations" have not been interpretations of the constitution, but merely of public policy. . . . A strict constitutionalist might indeed say that the constitution died in 1861, and one would have to scratch one's head pretty diligently to refute him.4

This paper will attempt to explore Nock's thesis by examining the central constitutional issue of the war: was the Union Army's invasion of the Confederacy a lawful act? This will be done primarily by analyzing the legal arguments made by President Abraham Lincoln in support of the invasion and against the Confederate secession. This method is justified by several facts. First, the invasion of the Confederacy was ordered by President Lincoln. Second, President Lincoln was one of the most brilliant lawyers of his era. As such, it is safe to assume that his legal argument in support of the invasion was of the highest quality. Third, it is likely that President Lincoln read, thought, wrote, and spoke about the legal issues involving the Civil War more so than any other pro-Union lawyer of his era. He was aware of the pro-Union arguments made both by his predecessors as well as by his contemporaries.5 Finally, President Lincoln, a superb writer and speaker, had strong incentive to make his views against secession known to the American people in order to secure their support for the onerous war which was made necessary by his opposition to secession. From the above facts, we can conclude that if the invasion of the Confederacy was legally justified, such legal justification can be found in the writings and pronouncements of President Lincoln.

This paper will not address the morality of the Union's invasion of the Confederacy, except indirectly and only to the extent that certain moral principles were undoubtedly reflected in the framework of laws governing the Union in 1861. Thus, whether the Union's invasion of the Confederacy can be morally justified, even if found to be unlawful, will not be answered here.6 It is the case, however, that the officials who launched the invasion, especially President Lincoln, made no such argument in 1861. He had previously indicated his views on that issue by criticizing John Brown's raid on Harper's Ferry.7

The issue of the right of a state to secede is of more than historical interest. Since the end of the Civil War in 1865, though several amendments giving the federal government greater power over the states have been ratified, there have been no textual changes to the Constitution which explicitly prohibit secession.

There was no attempt by either side in the Civil War to resort to federal courts or international arbitrators for a decision on the legality of secession. Nor has any state attempted to secede since the Civil War. As settled as secession may be as a political or historical issue to many, it has never been settled as a legal one. The recent revival of secession talk and practice worldwide makes the present undertaking a valuable one.

WAS THE INVASION JUSTIFIED BY THE SEIZURE OF FORT SUMTER?

In the context of a legal