(20) Legal Brief for the phrase "War Between the States"

D. Mark Baxter, an attorney with a law firm in Macon, Georgia, wrote the following legal brief supporting his con­tention that the American conflict of 1861-1865 should be referred to as the War Between the States.








NOTE: Fundamentally, it must be admitted that any name can properly be attached to a great event, but here the question must be which of two names, War Between the States or Civil War most accurately describes the reality of that great conflict.



The Federal Union, as the United States was then com­monly known was 84 years old in 1860. It was made up of 34 separate and distinct states, 13 of which had been British provinces. Though the provinces, or colonies, had acted in conjunction with each other on occasion, they were separate entities with separate governments, joined with each other only by allegianceto a common king, a common constitu­tional heritage, and to a limited degree, common economic or defensive interests.


When the Declaration of Independence was signed in 1776, the provinces acted in unison but with no central government. In 1777, the independent states in Congress drafted, and then ratified by individual conventions, the first constitution called, "Articles of Confederation." This instrument express­ly recognized the sovereignty and independence of each state. In 1783, the independent and sovereign status of each state was recognized in the Treaty of Paris, whereby Great Britain relinquished its claim to the former provinces.


In 1787, by convention, a second constitution was pro­posed for the states. By 1789 the requisite number of states had ratified it so that it replaced the older instrument. But it was not until 1791 that all of the states accepted the new compact. At the Constitutional Convention each state had one vote, though this was a grossly disproportionate scheme if the "people" framed the instrument. It was ratified by states acting in convention not by popular vote.


Whether this constitution was intended to be utterly perpetual and indestructible is best determined by the acts of the parties at the time. New York, Rhode Island, and Virginia included the statement in their ratifying acts spe­cifically reserving the right to appeal their ratification at any time. No one objected saying that such a reservation con­flicted with the basic concept of the compact. Massachusetts, New Hampshire, Delaware, South Carolina, and North Caro­lina inserted unmistakably clear language in their ratifying acts retaining their sovereignty and implicitly, their right to rescind ratification.


Seventy-one (71) years after this constitution was ratified, South Carolina called a convention to consider repeal of its ratification. If the repeal occurred, it resulted in what is known as secessionfrom the Federal Union. By late May, 1861, ten other states and the territory of Arizona and New Mexico had joined South Carolina by means of conventions of their people. Two other states probably would have joined but for the intervention of Federal troops and the arrest of dozens of state legislators.


In April, 1861, military forces of the old Federal Union attempted to reinforce a fort in the harbor of Charleston, South Carolina. South Carolina troops determined to bom­bard and seize the fort to prevent such a reinforcement. Thus, the war began.



At the very heart of all democratic governments and every Republican system of government is the essential concept that "government derives its authority from the just consent of the governed. This is the principle of self-determination. There is no liberty without it. To be effective this principle does not require the consent of all citizens affected, but merely a majority (ordinary or extraordinary). Consent or ratification was the very foundation of the Federal constitu­tion. It gave it legitimacy. When this consent was withdrawn by eleven of the states using precisely the same means by which it had been originally given, it is very difficult to 0b­jectively deny their right to do so under the facts. The con­ventions which acted in these states had precisely the same authority as those which had ratified the constitution seventy-one years earlier. If that authority had been lost there ought to be some unmistakable evidence of the loss.


Twenty-one of the states in the Federal Union refused to recognize this withdrawal and declared the eleven seceding states to be still in the Union, but a majority of the citizens in these states to be in rebellion.


To justify this "rebellion" analysis the Northern states argued that the Union was indivisible. They were unable to point to anything in the constitution which said so. The debates on the Constitution of 1787, the Federalist Papers, and the ratifying acts of the various states lent virtually no support to their argument. Scattered assertions by very few men a decade or so after the constitution was ratified provid­ed the sole evidence available.


Thus the war was waged by the twenty-three states against the eleven over a fundamental disagreement about the nature and make-up of the Federal Union. The right of each state to act as a sovereign body was at the core of the disagreement. Tariffs, slavery, economic dominance, and other factors certainly influenced people's actions, but the war was initiated by the Northern states to force the "rebellious persons" in the Southern states to recognize the alleged, perpetual, and indivisiblenature of the Constitution of 1787.


The acts of the parties to the conflict are interesting if viewed from a state sovereigntyperspective. Both Union and Confederate presidents called on the states for troops, not the "people of the country." Virtually every regiment raised on both sides had a state within its official title, as, for example, the Eleventh Ohio Infantry, of the Fifth Alabama Cavalry. The states usually armed and appointed officers for these regiments. The politics of both sides constantly sought to placate, pacify, or influence a state or states by means of appointments, promotions, etc. At the conclusion of the war, it was the Southern states which were readmitted to the Union. The Northern states refused to recognize that the Confederate States government ever existed, though it had exhibited all the evidence of a central government for over four years. The Southern states refused to accept the contin­uation of the old Federal Union as it existed prior to 1861. Thus in a very practical sense the war was fought by states, using military units raised within the various states, to prove by force of arms, that one legal position over the other must prevail.


A civil war is a conflict between two or more factions within one nation. Since the very existence of the two na­tions was at issue in the conflict, it can hardly be said that there was in fact only one. Only by the overwhelming weight of military force exerted over four years were the Northern states able to prevail. Then their point of view was not accepted by their foes, only forced upon them against their will. Thus it has never been agreed upon by the parties that the Northern point of view was correct.


While Northern men such as General John C. Pemberton fought for the South, and Southern men such as General George Thomas fought for the North, these examples reflect a very small percentage of the overall troops engaged. There were no Southern armies raised in New York, and no North­ern armies raised in Texas (excepting the inappropriate references which might be made to former slaves who were not citizens).


The only areas where anything like a "civil war" existed were in parts of Missouri, Tennessee, and Kentucky. These isolated areas were by no means representative of the two coalitions at war, and the simple truth is that the civil war in these regions resulted from population migrations decades earlier from the two sides into the same areas, placing people of opposing views in close proximity with each other.


There were enemy sympathizers on both sides, but their existence does not alter the fact that there was overwhelming support for the position of each government within its own citizenry.


The fighting was not done by mobs, gangs, or swarms of armed citizens as is usually the case in civil wars. It was fought by organized, trained, and centrally directed armies of the two coalitions of states. There was very little sabotage or civilian unrest (New York City being the notable excep­tion).


Soldiers themselves regarded their opponents as instru­ments of the government, not simply armed civilians to be shot when captured for resisting legitimate authority or engaging in treasonous activity.


Neither side ever refused to recognize the state govern­ments of the other (though in a few cases two groups claimed to be that government). Both sides refused to recognize the legitimate authority of the other's federal government.


If the term civil war is to be considered for its descriptive value, then it must be concluded that that value is severely limited.



In short, the conflict of 1861-1865 was fought by two coalitions of states which organized because of a mutuality of interest. The propaganda associated with the war after its conclusion describing it as a brother-versus-brother conflict cannot stand in light of the facts. These facts show massive, concentrated efforts by the two coalitions of states over a single fundamental issue: whether a state, as such, could withdraw from the Federal Union and direct its own destiny. The phrase "War Between the States" is thus perfectly descriptive of the conflict, while the term "Civil War" is simply fundamentally inaccurate.


From "Sweet Land of Liberty, A History of Liberty County, Georgia" by Robert Long Groover; Appendix Number 20, Page(s) 148-150; Used by the permission of the Liberty County Commissioners Office   



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