THE CONSTITUTIONAL ISSUE INVOLVED IN THE CIVIL WAR

A SOLDIER'S RECOLLECTIONS:
LEAVES FROM THE DIARY OF A YOUNG CONFEDERATE,

Randolph Harrison McKim, 1842-1920

All acknowledge that the right of Secession does not exist to-day. The fourteenth amendment has changed the character of the Federal Constitution. The surrender at Appomattox, moreover, involved the surrender of the right of Secession. Since the 9th of April, 1865, the Union has been indissoluble. That is universally acknowledged in the South to-day. But it was not so in 1861. Logically and historically the weight of evidence is clearly on the side of those who hold that the right of withdrawing from the Union existed from the foundation of the government.

Mr. Madison, the "father of the Constitution," held that, in adopting the Constitution, "they were making a government of a Federal nature, consisting of many co-equal sovereignties." Washington held that the Union then formed was "a compact." In a letter to Madison, Aug. 3, 1788, he uses this language, "till the States begin to act under the new compact." John Marshall said in the debate on the adoption of the Constitution: "It is a maxim that those who give may take away. It is the people that give power, and can take it back. Who shall restrain them? They are the masters who give it." This was said in discussing Virginia's right "to resume her powers if abused." Whatever he may have held late in life, this was his opinion in 1788 in the great debate on the Constitution. He was then in his thirty-third year. See Elliott's Debates, III, p. 227. It is an historical fact that the Constitution was regarded as a compact between the States by the leaders of opinion in New England for at least forty years after its adoption. In the same quarter the sovereignty of the States was broadly affirmed, and also the right of a State to resume, if need be, the powers granted or delegated under the Constitution. When Samuel Adams objected to the preamble because it expressed the idea of "a National Government instead of a Federal Union of sovereign States," Governor Hancock brought in the tenth amendment reserving to the States all the powers not expressly delegated to the General Government.

Webster and Story apostatized from the New England interpretation of the Constitution. I may here recall the fact that the first threat of Secession came from the men of New England. Four times before the Secession of South Carolina, Secession was threatened in the North,--in 1802-1803, in 1811-1812, in 1814, and in 1844-1845. The first time it came from Col. Timothy Pickering, of Massachusetts, a friend of Washington and a member of his Cabinet; the second time from Josiah Quincy, another distinguished citizen of Massachusetts; the third time from the Hartford Convention of 1814; and the fourth time from the Legislature of Massachusetts. Josiah Quincy in the debate on the admission of Louisiana, Jan. 14, 1811, declared his "deliberate opinion that, if the bill passes, the bonds of this Union are virtually dissolved, . . . as it will be the right of all [the States], so it will be the duty of some, to prepare definitely for a separation,--amicably if they can, violently if they must." In 1812 pulpit, press, and rostrum in New England advocated Secession. In 1839 John Quincy Adams declared "the people of each State have a right to secede from the Confederated Union."

In 1844 and again in 1845 the Legislature of Massachusetts avowed the right to secede and threatened to exercise the right if Texas should be admitted to the Union. This was its language:

"The Commonwealth of Massachusetts, faithful to the compact between the people of the United States, according to the plain meaning and intent in which it was understood by them, is sincerely anxious for its preservation, but it is determined, as it doubts not the other States are, to submit to undelegated powers in no body of men on earth."

This expresses exactly the attitude of the seceding States in 1861. Thus the North and the South at these two epochs (only a dozen years apart) held the same view of the right of withdrawal from the Union. And the ground of their apprehension was very similar. New England believed that the admission of Louisiana and Texas would give the South a preponderance of power in the Union, and hence that her rights within the Union would no longer be secure. The cotton States believed that the election of a sectional President by a party pledged to the abolition of slavery gave the North a preponderance of power in the Union and left their rights insecure. And when Virginia beheld the newly elected President preparing to coerce the seceding States by force of arms, she believed that the Constitution was being violated, and that her place was now with her Southern sisters.

It is a fact full of significance that even Alexander Hamilton, strong Federalist as he was, could threaten Jefferson with the Secession of New England, "unless the debts of the States were assumed by the General Government." And Madison spoke of the thirteen States as "thirteen sovereignties," and again he said, "Each State, in ratifying the Constitution, is considered as a sovereign body."

Daniel Webster, in 1830 and again in 1833, argued that the Constitution was not a "compact," not a "confederacy," and that the acts of ratification were not "acts of accession." These terms, he said, would imply the right of Secession, but they were terms unknown to the fathers; they formed a "new vocabulary," invented to uphold the theory of State sovereignty. But in this Mr. Webster was wholly mistaken. Those terms we now know were in familiar use in the great debates on the Constitution. In 1787 Mr. Gerry, of Massachusetts, said, "If nine out of thirteen States can dissolve the compact (i.e., the Articles of Confederation), six out of nine will be just as able to dissolve the new one." (It had been agreed that the consent of nine out of the thirteen States should be sufficient to establish the new government.) Gouverneur Morris, Alexander Hamilton, Washington all spoke of the Constitution as a "Compact," and of the new government as a "Confederacy." Both Massachusetts and New Hampshire, in their acts of ratification, refer to the Constitution as a "solemn Compact." We have then the authority of Webster himself for the opinion that these terms implied the right of Secession.

Nor is this all. Virginia, New York, and Rhode Island all declared in their acts of ratification that the powers granted by them to the General Government "may be resumed by them." Thus the right of Secession was solemnly asserted in the very acts by which these States ratified the Constitution. That assertion was part of the ratification. The ratification was conditioned by it. And the acceptance of these States as members of the Union carried with it the acceptance of the Constitution and the recognition of the right of Secession. This was recognized by Webster in his maturer years. See his speech Capon Springs, W.Va., in 1851.

I have thought it just to my comrades of whom I am to write in these pages to give at the outset this defence of the course they took in 1861. They followed that interpretation of the Constitution, which they received from their fathers--from Jefferson and Madison and Washington--rather than that which can claim no older or greater names than those of Story and Webster.

These arguments appeared to us convincing then. They are no less convincing to-day from the standpoint of things as they were in 1861. And we appeal to the candid judgement of history to decide whether, believing as we did, we were not justified in doing what we did. The most recent, and one of the ablest, of Northern historians acknowledged that "a large majority of the people of the South believed in the constitutional right of Secession," and as a consequence believed that the war on the part of the National Government was "a war of subjugation." But surely it is an act of patriotism to resist a war of subjugation, spoliation, and conquest, and by that standard the soldiers of the Confederate Armies must go down to history not as traitors, but as patriots. Our argument for the constitutional right of withdrawing from the Union may, or may not, appear conclusive, but at least the right of revolution, asserted by our sires in 1776, cannot be denied to their descendants of 1861.

On that ground I claim the assent even of those who still stoutly deny the right of Secession to the assertion that the armies of the South were composed not of traitors, but of patriots.

There was a time, during those dark days of Reconstruction, when public opinion in the North demanded that we, who had fought under the Southern flag, should prove the sincerity of our acceptance of the results of the war by acknowledging the unrighteousness of our cause and by expressing contrition for the course we pursued.

But could we acknowledge our cause to be unrighteous when we believed it just? Could we repent of an act done in obedience to the dictates of conscience? Our late antagonists-- now, thank God, our friends-- may claim that our judgement was at fault; that our action was not justified by sound reasoning; that the fears that goaded us to withdraw from the Union were not well-grounded; but, so long as it is acknowledged that we followed duty as we understood it, they cannot ask us to repent. We could not repent of obeying the dictates of conscience in the face of hardship, danger and death!

And now I turn to the consideration of a grievous reproach often directed against the men who fought in the armies of the South in the Civil War. When we claim for them the crown of patriotism, when we aver that they drew their swords in what they believed to be the cause of liberty and self-government, it is answered that the corner-stone of the Southern Confederacy was slavery, and that the soldiers who fought under the banner of the Southern Cross were fighting for the perpetuation of the institution of slavery.

That is a statement which I wish to repudiate with all the earnestness of which I am capable. It does a grievous injustice to half a million patriot soldiers who were animated by as pure a love of liberty as ever throbbed in the bosom of man, and who made as splendid an exhibition of self-sacrifice on her behalf as any soldiers who ever fought on any field since history began.

In the first place, I ask, If slavery was the corner-stone of the Southern Confederacy, what are we to say of the Constitution of the United States? That instrument, as originally adopted by the thirteen colonies contained three sections which recognized slavery. (Art. 1, Sec. 2 and 9, and Art. 4, Sec. 2.) And whereas the Constitution of the Southern Confederacy prohibited the slave trade, the Constitution of the United States prohibited the abolition of the slave trade for twenty years (1789-1808)! And if the men of the South are reproached for denying liberty to three and a half million of human beings, at the same time that they professed to be waging a great war for their own liberty, what are we to say of the revolting colonies of 1776 who rebelled against the British crown to achieve their liberty while slavery existed in every one of the thirteen colonies undisturbed? Can not those historians who deny that the South fought for liberty, because they held the blacks in bondage, see that upon the same principal they must impugn the sincerity of the signers of the Declaration of Independence? We ask the candid historian to answer this question: If the colonists of 1776 were freeman fighting for liberty, though holding the blacks in slavery in every one of the thirteen colonies, why is the title of soldiers of liberty denied the Southern men of 1861, because they too held the blacks in bondage? Slavery was an inheritance which the people of the South received from the fathers, and if the States of the North, within fifty years of the Revolution, abolished the institution, it cannot be claimed that the abolition was dictated by moral considerations, but by differences of climate, soil, and industrial interests.

Let me here state a fact of capitol importance in this connection: the sentiment in favor of emancipation was rapidly spreading in the South in the first quarter of the nineteenth century. Wilson acknowledges that "their was no avowed advocate of slavery" in Virginia at that time. In the year 1826 there were one hundred and forty-three emancipation societies in the United States, and of these, one hundred and three were in the South. So strong was the sentiment in Virginia for emancipation that, in the year 1832, one branch of her Legislature came near passing a law for the gradual abolition of slavery; and I was assured in 1860 by Col. Thomas Jefferson Randolph, who was himself a member of the Legislature that year, that emancipation would certainly have been carried in the next session but for the reaction created by the fanatical agitation of the subject by the Abolitionists, led by Wm. Lloyd Garrison. Though emancipation was defeated at that time by a small vote, yet the Legislature passed a resolution postponing the consideration of the subject till public opinion had further developed. The Richmond Whig of March 6, 1832, said: "The great mass of Virginia herself rejoices that the slavery question has been taken up by the Legislature, that her legislators are grappling with the monster," etc. A Massachusetts writer, George Lunt, says: "The States of Virginia, Kentucky, and Tennessee were engaged in practical movements for the gradual emancipation of their slaves. This movement continued until it was arrested by the aggressions of the Abolitionists."

These facts are beyond dispute:

1. That from 1789 down to 1837 slavery was almost universally considered in the South a great evil;

2. That public opinion there underwent a revolution on this subject in the decade 1832-1842.

What produced this fateful change, of sentiment? Not the invention of the cotton gin, for, that took place in 1793. No, but the abolition crusade launched by Win. Lloyd Garrison, Jan. 1, 1831. Its violence and virulence produced the result that might have been expected. It angered the South. It stifled discussion. It checked the movement toward emancipation. It forced a more stringent policy toward the slave. The publication of Garrison's "Liberator" was followed, seven months later, by Nat Turner's negro insurrection in which sixty-one persons--men, women, and children--were murdered in the night. President Jackson, in his message of 1835, called attention to the transmission through the mails "of inflammatory appeals addressed to the passions of the slaves, in prints and various sorts of publications, calculated to stimulate them to insurrection, and to produce all the horrors of a servile war."

The conclusion is irresistible that but for that violent and fanatical movement slavery would have been peaceably abolished in Virginia, and then in other Southern States.

Before leaving the subject I would like to recall one or two historical facts. Not the Southern people, but the Government of Great Britain, must be held responsible for American slavery. The colony of Virginia protested again, and again, and again to the British King against sending slaves to her shores--but her protest was in vain. In 1760 South Carolina passed an act prohibiting the further importation of slaves, but England rejected it with indignation. Let it be remembered, too, that Virginia was the first of all the States, North and South, to prohibit the slave trade, and Georgia was the first to incorporate such a prohibition in her Constitution. Virginia was in fact in advance of the whole world on this subject. She abolished the slave trade in 1778, nearly thirty years before England did the same, and the same length of time before New England was willing to consent to its abolition.

But I am chiefly concerned to show that my comrades and brothers, of whom I write in these pages, did not draw their swords in defence of the institution of slavery. They were not thinking of their slaves when they cast all in the balance--their lives, their fortunes, their sacred honor-- and went forth to endure the hardships of the camp and the march and the perils of the battle field. They did not suffer, they did not fight, they did not die, for the privilege of holding their fellow men in bondage!

No, it was for the sacred right of self-government that they fought. It was in defence of their homes and their firesides. It was to repel the invader, to resist a war of subjugation. It was in vindication of the principle enunciated in the Declaration of Independence that "governments derive their just powers from the consent of the governed."

Only a very small minority of the men who fought in the Southern armies--not one in ten--were financially interested in the institution of slavery. We cared little or nothing about it. To establish our independence we would at any time have gladly surrendered it. If any three men may be supposed to have known the object for which the war was waged, they were these: Abraham Lincoln, Jefferson Davis, and Robert E. Lee. Their decision agrees with what I have stated. Mr. Lincoln consistently held and declared that the object of the war was the restoration of the Union, not the emancipation of the slaves. Mr. Davis as positively declared that the South was fighting, for independence, not for slavery. And Robert E. Lee expressed his opinion by setting all his slaves free Jan. 8, 1863, and then going on with the war for more than two years longer. In February, 1861, Mr. Davis wrote to his wife in these words, "In any case our slave property will eventually be lost." Thus the political head of the Confederacy entered on the war foreseeing the eventual loss of his slaves, and the military head of the Confederacy actually set his slaves free before the war was half over.

Yet both, they say, were fighting for slavery...