Regarding the illegality of the Confderacy during the US Civil War

DS86 · 28-08-2014 5:51am #1

I realise that both neither Britain nor France recognised the Confederacy during the American Civil War through the Confederates sought this recognition, and though it was obviously rejected by both former powers, but nonetheless despite this rejection of recognition by the powers of the day, how did the Confederate States of America succumb to been seen within international eyes, and most particularly through the eyes of the Union - as been that of an illegal entity, and hence unworthy of sovereignty?

Despite US constitutional laws and said constitution's stipulations regarding the rights of individual states, and given that many of the Southern states claimed to be merely acting upon this right as stipulated within the US constitution, aka. that the US constitution stipulated states rights, including within the matters of slavery. How did the Union win this battle, not only as it did on the battlefront, which it obviously did - but how did the Union win the philosophical and US constitutional argument regarding slavery, and how was the Confederacy reduced from been an entity claiming it's rights within the US constitution as a legitimate entity claiming it's right to sovereignty, toward been that of a mere illegal entity comprised of rebel forces?

In other words, the physical battles notwithstanding, how did the Union win the battle of words in relevance to the American Civil War, to the extent that the Confederacy was not only reduced to an illegal entity within it's day - but to this day, continues to be recognised as such?

Peregrinus · 28-08-2014 7:58am

DS86 wrote: »

I realise that both neither Britain nor France recognised the Confederacy during the American Civil War through the Confederates sought this recognition, and though it was obviously rejected by both former powers, but nonetheless despite this rejection of recognition by the powers of the day, how did the Confederate States of America succumb to been seen within international eyes, and most particularly through the eyes of the Union - as been that of an illegal entity, and hence unworthy of sovereignty?

Couple of thoughts:

1. This isn’t really a history question, even though it refers to historical events. You might want to consider posting in in Political Theory.

2. You suggest that the Confederacy is seen as “an illegal entity, and hence unworthy of sovereignty”. I think you have that the wrong way around. Sovereignty isn’t created by law; rather, it creates law.

As far as third countries are concerned, the Confederacy would have been a sovereign entity if it controlled its own territory, with no effective challenge by anyone else. It never achieved that. Had they won the civil war, they would have been recognised as sovereign by other states. But this is a question of political facts on the ground, not theoretical legal legitimacy. It’s not the business of the government of (say) France to say who ought to govern the southern part of the United States. The only question the French government will ask themselves is who does govern the southern part of the United States. Once that question could only be definitively answered with “the Confederacy”, then the Confederacy would have enjoyed international recognition.

Occasionally this is obscured because, for political reasons, it suits a particular government to deny or ignore political realities. It took 26 years, for example, for the US to extend formal recognition to the People’s Republic of China. But these cases are the exception, not the rule, and everyone knew all along that the denial of recognition was based on US political priorities, not on some principle of legitimacy.

DS86 wrote: »

Despite US constitutional laws and said constitution's stipulations regarding the rights of individual states, and given that many of the Southern states claimed to be merely acting upon this right as stipulated within the US constitution, aka. that the US constitution stipulated states rights, including within the matters of slavery. How did the Union win this battle, not only as it did on the battlefront, which it obviously did - but how did the Union win the philosophical and US constitutional argument regarding slavery, and how was the Confederacy reduced from been an entity claiming it's rights within the US constitution as a legitimate entity claiming it's right to sovereignty, toward been that of a mere illegal entity comprised of rebel forces?

The niceties of the US constitutional position might be relevant as between the Union and the Confederacy, but they are no business of third countries. Just as it’s not the business of France to say who ought to govern the southern part of the territory of the US, so it’s not the business of France to say that the US Constitution does or does not permit states to withdraw from the Union, or to enforce its view of the US Constitution.

Within the US, the constitutional arguments were relevant, but I think you misstate the issue that they argued over. The civil war did not start because the Union attempted to ban slavery within slave states; it started because (some of) the slave states sought to withdraw from the Union, fearing that the tide of political opinion was such that sooner or later such a ban would be proposed. So the right the seceding states asserted (and fought to support) was not the right to maintain the institution of slavery; they already had that right, and it was not - at the time - being challenged. It was the right to secede from the Union if they no longer judged it to be in their interests to remain within it. And, crucially, the right of secession wasn’t a “right stipulated within the US constitution”. The Constitution says nothing at all about a state leaving the Union. The argument of the Confederacy was that, because the States collectively created the Union in 1776, then by implication each State had the individual right to secede from the Union at any later date. But they didn’t assert that the Constitution guaranteed them that right, because the fact is that it didn’t. They argued their claim on political, not legal, grounds. And war, of course, is the advancement of politics by other means; they felt that to win the argument, they were going to have to fight and win a war. Which is why it was the South that fired first upon the North, and not the other way around.

DS86 wrote: »

In other words, the physical battles notwithstanding, how did the Union win the battle of words in relevance to the American Civil War, to the extent that the Confederacy was not only reduced to an illegal entity within it's day - but to this day, continues to be recognised as such?

It didn’t start off as a legal entity that came to be seen as illegal. It started off - very much like the US itself - as a revolutionary entity, that sought to establish sovereignty as a political fact, from which legality would flow. But, unlike the US itself, they did not succeed in establishing sovereignty, so legality never came.

Manach · 28-08-2014 11:03am

Fairly much as Peregrinus said .

However the Confederacy had a measure of legal/international protections.
In that their privateers were considered, in spite of some protests, to be legitimate vessels of war and not pirates. Ditto for forces captured on land were treated as regular PoWs and not criminals.
Internationally, the European powers extended a measure of recognition that stopped short of full recognition but had some consequences. This was demonstrated in the Trent Affair. When the US Navy seized Southern diplomats on a British ship(Trent), part of the reason why this could have sparked a war was their status as envoys of a power.

An excellent read on the subject (US Civil War) and the role of law in war is "Lincoln's Code" by Witt on how the concept of War crimes developed.

Regarding the illegality of the Confderacy during the US Civil War

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