Not a Conventional CSA-wins Thread

Beck Reilly · Jul 21, 2004

What if, rather than firing on Fort Sumter, the Confederacy had filed a lawsuit against the US government for the right to secession, thereby making their independence legal and preventing the Civil War?

Now, I assume that such a case would, eventually, be brought before the United States Supreme Court. I imagine, due to the importance of the case, that the US will be represented by its Attorney General (at this time, I believe it was Edward Bates) and the CSA by its Attorney General, Judah P. Benjamin. The Supreme Court line-up, depending on the timing (I'd guess the case would reach the Supreme Court in late 1861) would look like this:

-----
CJ Roger B. Taney (MD)
-----
AJ John A. Campbell (AL) note: w/o Fort Sumter, he won't resign in April, 1861
AJ John Catron (TN)
AJ Nathan Clifford (ME)
AJ Robert C. Grier (PA)
AJ Samuel Nelson (NY)
AJ James M. Wayne (GA)
-----
AJ Peter V. Daniel (VA) note: seat empty until 1862 app. of Samuel Miller (IA)
AJ John McLean (OH) note: seat empty until 1862 app. of Noah Swayne (OH)
-----

So, the Confederacy still loses the case by an extremely slim margin (5 to 4). If I were to guess, this would be why no lawsuit was filed. So the question is, what if Peter V. Daniel had lived only three more years?

Peter Cowan · Jul 21, 2004

The Lower South states had already seceded. As such, there could be no right of appeal to the Supreme Court of what they had already determined to be a foreign country. To do so would be to acknowledge the primacy of that country thus nullifying their secession.

Beck Reilly · Jul 21, 2004

Peter Cowan said:
The Lower South states had already seceded. As such, there could be no right of appeal to the Supreme Court of what they had already determined to be a foreign country. To do so would be to acknowledge the primacy of that country thus nullifying their secession.

It can easily be filed by a resident of Virginia, Arkansas, North Carolina, Tennessee, Arkansas, Maryland, Delaware, Kentucky, Missouri or even a sympathetic Northerner.

Grey Wolf · Jul 21, 2004

Where's he from and which one replaced him ?

Grey Wolf

Peter Cowan · Jul 21, 2004

True, but they would be US citizens not the Confederacy. My point was, that having declared independence, the Confederacy could not resort to the legislature of a foreign power (foreign by their lights).

I rather like your idea though. It opens up a lovely legal can of worms as one thing the US Constitution didn't specify was that an individual state could secede from the Union. Excepting Texas, I believe the treaty that led to Texas joining the Union, did allow for secession.

Thinking about it, that treaty also allowed for the prospect of Texas splitting into smaller states - I think 4 in total. A net gain of three more 'slave states' represented in Congress could have prolonged the political aspects of the dispute for a few more years.

Beck Reilly · Jul 21, 2004

Grey Wolf,

Beck Reilly said:
AJ Peter V. Daniel (VA) note: seat empty until 1862 app. of Samuel Miller (IA)

Daniel was from Virginia. His replacement, Samuel Miller was from Iowa.

A quote which shows the nature of Daniel's opinions:

http://www.michaelariens.com/ConLaw/justices/daniel.htm said:
Daniel's inflammatory concurring opinion in Dred Scott v. Sandford, aided in the worsening of relations between North and South in the late 1850s. Daniels first raised the stakes in Dred Scott, claiming that the case was more important than any other the Court had decided. He then called the United States an "American Confederacy," a phrasing he used in Prigg, and declared that "that the African negro race never have been acknowledged as belonging to the family of nations." The remainder of Daniel's concurrence was an effort to find authorities in international law and in western (European) legal history to support the Court's conclusion the Dred Scott was not a citizen, that the Missouri Compromise was unconstitutional, and that the "once free, always free" doctrine was not a doctrine in law.

Beck Reilly · Jul 21, 2004

Peter Cowan said:
True, but they would be US citizens not the Confederacy. My point was, that having declared independence, the Confederacy could not resort to the legislature of a foreign power (foreign by their lights).

No, but they can take advantage of the judicial ruling of the United States. For instance, if the Supreme Court ruled that secession was constitutional (even if it wasn't the CSA itself which brought the case), secession could not have been used as a causus belli. The US had only two reasons for going to war: 1) the illegality of secession (a.k.a. hold together the Union), and 2) the shelling of Fort Sumter. In a timeline in which secession was constitutional, reason #1 could not be used and the CSA would never fire on Fort Sumter, thus preventing the use of reason #2.

One side effect, the "northern" Southern states may: A) not secede in 1861 since Lincoln never needs to raise an army, B) secede at a future point in time when slavery is outlawed, C) stay a part of the USA permanantly.

I assume, at a future point in time, this decision will have to be overturned otherwise the entire Union would dissolve. At what point, I cannot say, but the Confederacy would have been long-gone by then.

MerryPrankster · Jul 21, 2004

"I assume, at a future point in time, this decision will have to be overturned otherwise the entire Union would dissolve. At what point, I cannot say, but the Confederacy would have been long-gone by then."

Why? Besides the South (which wished to maintain slavery), what other groups of states had reasons to secede?

We might see something with the Midwest during the Populist era, but many of the abuses that gave rise to the Populists might not happen if the South left the Union.

robertp6165 · Jul 22, 2004

Beck Reilly said:
It can easily be filed by a resident of Virginia, Arkansas, North Carolina, Tennessee, Arkansas, Maryland, Delaware, Kentucky, Missouri or even a sympathetic Northerner.

Actually, Jefferson Davis stayed in Washington for quite a long time after Mississippi seceded, hoping he would be arrested so that he could file such a case. And when Davis was arrested after the war, he pretty much begged them to put him on trial, so he could make his case for secession. Evidently Davis thought the South had a good case (incidentally, so did the Federal Government, which is why he was not put on trial).

robertp6165 · Jul 22, 2004

Beck Reilly said:
What if, rather than firing on Fort Sumter, the Confederacy had filed a lawsuit against the US government for the right to secession, thereby making their independence legal and preventing the Civil War?

Now, I assume that such a case would, eventually, be brought before the United States Supreme Court. I imagine, due to the importance of the case, that the US will be represented by its Attorney General (at this time, I believe it was Edward Bates) and the CSA by its Attorney General, Judah P. Benjamin. The Supreme Court line-up, depending on the timing (I'd guess the case would reach the Supreme Court in late 1861) would look like this:

-----
CJ Roger B. Taney (MD)
-----
AJ John A. Campbell (AL) note: w/o Fort Sumter, he won't resign in April, 1861
AJ John Catron (TN)
AJ Nathan Clifford (ME)
AJ Robert C. Grier (PA)
AJ Samuel Nelson (NY)
AJ James M. Wayne (GA)
-----
AJ Peter V. Daniel (VA) note: seat empty until 1862 app. of Samuel Miller (IA)
AJ John McLean (OH) note: seat empty until 1862 app. of Noah Swayne (OH)
-----

So, the Confederacy still loses the case by an extremely slim margin (5 to 4). If I were to guess, this would be why no lawsuit was filed. So the question is, what if Peter V. Daniel had lived only three more years?

I count five Southern justices...Taney, Campbell, Catron, Wayne, and Daniel. And just because a justice hailed from a Northern State does not mean he is going to automatically vote against secession. The right of secession was generally held as valid across the country...not just in the South.

Beck Reilly · Jul 22, 2004

robertp6165 said:
I count five Southern justices...Taney, Campbell, Catron, Wayne, and Daniel. And just because a justice hailed from a Northern State does not mean he is going to automatically vote against secession. The right of secession was generally held as valid across the country...not just in the South.

I forgot to put the date of death for Daniel, sorry. He died in May of 1860. It just took a while to appoint a new Justice.

robertp6165 · Jul 22, 2004

Matt Quinn said:
"I assume, at a future point in time, this decision will have to be overturned otherwise the entire Union would dissolve. At what point, I cannot say, but the Confederacy would have been long-gone by then."

Why? Besides the South (which wished to maintain slavery), what other groups of states had reasons to secede?

We might see something with the Midwest during the Populist era, but many of the abuses that gave rise to the Populists might not happen if the South left the Union.

I don't know. New England has always had a notoriously hard time getting along with other sections of the country. It's not just conflict with the South. They have had bitter conflicts with the mid-western and western states at various times as well (the War of 1812 is an example). I can see New England seceding at a later date.

robertp6165 · Jul 22, 2004

Beck Reilly said:
I forgot to put the date of death for Daniel, sorry. He died in May of 1860. It just took a while to appoint a new Justice.

That still gives, at worst, a 4-4 tie. If the other justice whose seat you show as unfilled was also gone by 1861, then the South has a 4-3 majority.

Grey Wolf · Jul 22, 2004

I hadn't realised there were so many states beginning with M (8) - I can work out that MD is Maryland, hence the contention it is 'Southern', but where on Earth is ME ?

Grey Wolf

Beck Reilly · Jul 22, 2004

Grey Wolf said:
I hadn't realised there were so many states beginning with M (8) - I can work out that MD is Maryland, hence the contention it is 'Southern', but where on Earth is ME ?

ME >> Maine.

DuQuense · Jul 22, 2004

I alway heard that the were several Cases filed About the "Rite of Secession". IN 1866 the Supreme Court Bundled them together, and Declared them Moot, due to the Cases having been otherwise Determined.

They have been aruged in Moot Court several times, Most of the time the CSA wins on Points.

Grey Wolf · Jul 22, 2004

Beck Reilly said:
ME >> Maine.

Ah, you can't get much more Northern than that

And wasn't that where the ultra Republicans (Hamblin ?) came from ?

Grey Wolf

Brilliantlight · Aug 27, 2004

robertp6165 said:
Actually, Jefferson Davis stayed in Washington for quite a long time after Mississippi seceded, hoping he would be arrested so that he could file such a case. And when Davis was arrested after the war, he pretty much begged them to put him on trial, so he could make his case for secession. Evidently Davis thought the South had a good case (incidentally, so did the Federal Government, which is why he was not put on trial).

What would have been gained by the Federal Government in putting him on trial? If they won they gained nothing, if they lost they would have lost face. I also think the North would have won the court after the war if for no other reason the Supreme Court Justices had no desire to be lynched by angry mobs of Union Army veterans.

Faeelin · Aug 27, 2004

robertp6165 said:
I count five Southern justices...Taney, Campbell, Catron, Wayne, and Daniel. And just because a justice hailed from a Northern State does not mean he is going to automatically vote against secession. The right of secession was generally held as valid across the country...not just in the South.

Is this a post from some sort of alternate timeline? Just because a justice hailos from the south Does not mean he is going to vote automatically for secession.

And this right of secession was universally held, do explain the whole civil war thing.

Paul Spring · Aug 27, 2004

I don't know. New England has always had a notoriously hard time getting along with other sections of the country. It's not just conflict with the South. They have had bitter conflicts with the mid-western and western states at various times as well (the War of 1812 is an example). I can see New England seceding at a later date.

As far as I know, the only periods where New England had really bitter feelings against other sections of the country was at the time of the war of 1812, and during the period leading up to and during the Civil War.

The feelings of New Englanders in the period leading up to and during the War of 1812 are very understandable. Basically, you had two southern presidents (Jefferson and Madison) who had pursued policies like the Embargo Act (attempting to shut down all US foreign trade) and the war of 1812 itself (again crippling ocean commerce) that seemed intended to destroy the economy of New England.