The great question of the War : the legal status of secession in the aftermath of the American Civil War, 1865-1869

This dissertation reexamines a fundamental assumption of American history: that the Union's triumph at Appomattox provided the final settlement of the legality of state secession from the Union. Civil War-era Americans did not uniformly believe that a legal question that had animated furious debate throughout the antebellum period could be definitively resolved by the triumph of the Union army. Jefferson Davis's post-war treason trial presented an opportunity to test the legality of secession in a court of law rather than solely on the field of battle. It was widely anticipated that Davis would defend his suit by arguing that the secession of his home state of Mississippi had negated his duty of loyalty to the United States and rendered him unable to commit treason against the nation. Convicting Davis of treason would accordingly act to affirm the "verdict" of Appomattox.

But if Davis were acquitted, which seemed possible once it was decided that he would be tried before a jury in the former Confederate capital of Richmond, his case would place the legitimacy of Union victory in serious jeopardy. In light of the potentially catastrophic outcome of Davis's trial, the government finally dropped the prosecution against him in early 1869. A few months later, the Supreme Court delivered a pronouncement against the constitutionality of secession in a far less volatile context, quietly declaring the nation to be "an indestructible Union composed of indestructible states" in Texas v. White, a case involving the repayment of government bonds.

The lingering uncertainty about the legitimacy of secession reveals the unease with which Americans confronted the tension between the rule of law and the chaos of war in the aftermath of the Civil War. Although Civil War-era Americans prided themselves on their commitment to reasoned argument as the only acceptable method of settling legal disputes, they recognized that their civil war deviated wholly from this ideal. Some theorists even contended the experience of battle had convinced them that war was the superior method of deciding deeply divisive constitutional questions, because the sacrifice of 620,000 lives carried far more weight than the ordinary processes of law.

Note: Abstract extracted from PDF file via OCR.

Digitization of this thesis was made possible by a generous grant from the Jefferson Trust, 2015.

Thesis originally deposited on 2016-03-14 in version 1.28 of Libra. This thesis was migrated to Libra2 on 2017-03-23 16:35:43.