3.4.1 The Old South (1861-1877): Law and War

Protests against turmoil and tyranny

Burroughs v. Peyton – Virginia, 1864 (57 Va. 470); Gatlin v. Walton – North Carolina, 1864 (60 N.C. 325)

  • The coastal upper South’s reaction to war was the nation’s reaction in microcosm:  two states (Delaware and Maryland) decided that union was more important than preserving a way of life based on slavery, and two (Virginia and North Carolina) seceded.  But all four states were wary of their central government and complained that many wartime measures as high-handed and undemocratic.
  • Abraham Lincoln took many unprecedented steps to defend the Union, including suspension of habeas corpus and imposition of martial law in parts of the border states.  Maryland lawmakers were circumspect in criticizing these measures, particularly because Lincoln made clear he would preserve Union control of Maryland, next door to the national capital, by any means necessary.  Delaware’s legislature criticized Lincoln’s war measures more openly, particularly the 1862 military draft and the 1863 Emancipation Proclamation.
  • In 1862, both the federal and Confederate congresses enacted draft laws but provided that draftees could buy their way out by hiring substitutes.  Both laws were unpopular and were challenged as an infringement of civil liberties.  In Peyton, the Virginia supreme court gave Confederate draft challengers little sympathy but in North Carolina, Chief Justice Pearson was more sympathetic and released draftees under writs of habeas corpus until his colleagues overruled him in Gatlin.  Pearson did not oppose the war but he felt, like northern conservatives, that the law should not be bent even for wartime emergencies.

“The power of coercing the citizen to render military service, is indeed a transcendent power, in the hands of any government; but so far from being inconsistent with liberty, it is essential to its preservation.  The danger that the power may be abused, cannot render it proper to withhold it; for it is necessary to the national life.” – Justice __, in Peyton

  [I]f the courts assume the government may act on the principle, … that ‘necessity knows no law,’ … [w]e may put aside the books and indulge the hope, that when peace again smiles upon our country, law will resume its sway.  Inter arma, silent leges [in time of war, law is silent].”  - Chief Justice Richmond Pearson (dissenting), in Gatlin

Resistance to emancipation in the loyal states

  • The Civil War turned many parts of the border states into combat zones and made it difficult for those states to enforce legal order.  Many border-state slaves took advantage of the situation to escape to Northern lines and freedom and it soon became clear that whatever the war’s outcome, slavery on the border had been dealt a fatal blow. 
  • The border states reacted in different ways to this event.  Some (such as Delaware) remained in denial to the end of the war, and in others (such as Maryland), antislavery forces gained power and embraced the opportunity to abolish the institution.
  • Delaware temporarily reversed the trend toward freedom it had followed since 1818 (see § __) and passed a series of laws tightening white control over the state’s remaining slaves.  By contrast, Maryland liberalized its manumission laws in 1864 and, shortly afterward, held a constitutional convention that abolished slavery.  But white Marylanders were reluctant to extend any rights to black Marylanders other than simple freedom.  Many former slaveowners began using the state’s apprenticeship laws to try to reduce their former slaves to a state of near-slavery (see § __).

“I favor and advocate the policy of immediate emancipation in Maryland … because … slavery was the principal cause of this wicked rebellion … because it has been and is now, a support and material aid in carrying on the war … because it is inconsistent with the prosperity and true interests of Maryland, and not adapted to the development of her agricultural and mineral resources … because the institution of slavery has been already destroyed by the rebellion … and … because there will never be any permanent peace between the North and the South, so long as slavery exists as a disturbing element.” – William Purnell, Maryland constitutional convention, June 24, 1864

“[T]his General Assembly regards said proposed [13th Amendment, abolishing slavery] as violative of the reserved rights of the several States, contrary to the principle upon which the government was framed, and believes … it will form an insuperable barrier to the restoration of the seceded States to the Federal Union; [t]herefore … [we] declare [our] unqualified disapproval of said proposed amendment.”  - Delaware Legislature, February 6, 1865

Oaths and amnesties

Anderson v. Baker – Maryland, 1865 (23 Md. 531); State v. Blalock – North Carolina, 1867 (61 N.C. 242)

  • Oaths.  Postwar Unionist governments in many Southern states required their citizens to take loyalty oaths as a condition of being allowed to vote, hold office and enjoy other privileges.  Many Southerners refused to take the oaths as a matter of conscience; others could not comply with stringent “ironclad” oaths that required them to swear they had never supported the Confederacy.  The oath laws were a useful device for keeping Unionists in power after the war, but they were challenged as unconstitutional ex post facto (after-the-fact) laws that penalized people for acts that were not criminal at the time they were committed. 
  • In Anderson, a divided Maryland supreme court upheld its state’s 1864 loyalty oath and rejected the argument that it was ex post facto, but in Cummings v. Missouri (1868), the U.S. Supreme Court sided with the dissenters and struck down a similar Missouri oath law.
  • Amnesty.  The coastal Upper South states (except for Delaware) were active theaters of war and suffered much damage.  Bitterness grew in the ruins, and after the war the courts faced a steady stream of claims against former soldiers for damage inflicted on civilian property during wartime campaigns.
  • The question arose:  should the states permit such claims to be made, or should they grant amnesty for wartime acts?   Unionist governments and courts in some former Confederate states favored amnesty; others were less forgiving.  North Carolina enacted an amnesty law.  Surprisingly, Virginia did not, but most war-weary Virginians observed an informal amnesty of their own.    

“[I]f a restriction of the right of suffrage be deemed necessary … under the circumstances in which the public interests are placed, there can be no valid objection. … How far those of [Maryland’s] people who united in this effort to destroy the Union and assisted in bring in the war, in all its horrors, within her borders, and those of them who aided and abetted the rebellion, … was a matter for the judgment and determination of [the 1864 constitutional convention].”Justice Daniel Weisel, in Anderson

“Everyone has something unpleasant to remember, and many have wrongs to revenge.  The details, not to say the … denunciation of parties, the hazard of costs and damages, and the infliction of punishments, would not only keep alive these evils, but would cost them to spread into a pestilence.  While so many have injuries to revenge, quite as many have errors to regret; and it will be a great public good if the past can be forgiven and forgotten.” – Chief Justice Richmond Pearson, in Blalock
Cartoon showing slave escaping to Union lines (1861) - courtesy Library of Congress

“The assumption that the President of the United States can, by proclamation, abolish the relation of master and slave, and deprive the former of property, amounting under its intended operation, to thousands of millions of dollars, is too monstrous to be honestly entertained by a mind unbiased by prejudice or fanaticism.” – Delaware Legislature (1863)


"God Save the Republic":  Banner commemorating Maryland emancipation (1864) - courtesy Wikimedia Commons

Southerners taking loyalty oath (1863) - courtesy Library of Congress

Confederate soldier - courtesy Library of Congress