The American Civil War

The American Civil War was the armed rebellion of five slaveholding polities against the lawful government of the United Kingdom of America, fought from 1861 to 1863 and suppressed by the ministry of Abraham Lincoln. It killed about half a million people in two years, which is the highest rate of death the Realm has ever sustained. It is the central event of the Realm’s domestic history and the one the Realm has never finished arguing about.

Its constitutional character is unusual and is the key to everything else. The rebels did not claim to leave the Union, because the Charter of Union provides no method of leaving and they did not wish to concede that they were founding anything new. They claimed instead to be loyal to the King and in resistance to his ministers, on the argument that Lincoln’s government was unlawful and that obedience to it was therefore not owed. They constituted a state at Charles Town, gave it a head styled Lord Protector, left the Crown’s chair in it deliberately vacant, and petitioned Ernest II to recognise them as his true subjects in America.

The petition was never formally received. The King said nothing, in public or in private, for the entire duration of the war, and the silence did more damage to the rebel case than any argument the Union made. A rebellion that has staked everything on the sovereign’s recognition, and receives no answer at all, is left holding a constitutional theory with nothing at its centre.

The Union’s own conduct of the war is the second thing the Realm remembers. Parliament sat throughout. Supply was voted rather than assumed. A general election was held on time, and the Governor-General refused to postpone it when he was urged to. Habeas corpus was never suspended. The ministry faced three confidence votes and survived all three, two of them during the fighting. The doctrine the Realm drew from this, and has relied on in every emergency since, is that an emergency ministry is legitimate only if it can be ended by ordinary means while the emergency continues.

Against that stands the settlement, which is where the Realm’s account becomes hard. The rebellion was defeated in 1863 and slavery remained lawful for two more years, because the compensation payable to slaveholders in the loyal polities had to be valued and funded before the abolition statute could pass. The Emancipation Measure of 1 January 1865 freed everyone, everywhere, including in the polities that had never rebelled. Their owners were paid. The people they had owned were not, and never have been. The American Rights Act of 1866 that followed bound the federal government alone and left the polities untouched, which is why the guarantees of 1866 were of so little use in a county courthouse in 1886, and why the Act had to wait until 1962 to be extended to the polities at all.

Dozens of rebel leaders were hanged for treason, including the Lord Protector. The Realm teaches this and has not settled what it thinks of it, particularly since John Brown, convicted of armed insurrection for the same cause in the other direction, was imprisoned rather than executed because treason had been withdrawn from his indictment in exchange for a plea. The war is still contested, and the thing most contested about it is not who won.

The name and the constitutional question

What the Realm calls it

It is the Civil War, in ordinary speech and in official usage, and the plainness of the name is itself a settlement. Alternatives were pressed at the time and afterwards. The Union’s own war papers generally say the rebellion, which was legally exact and politically loaded. Sympathisers in the rebel polities preferred formulations that implied two parties of equal standing, and none of them took.

The Realm’s other great internal conflict, the Four-Year War of 1775 to 1779, is named for its length. This one is named for its character, and the distinction is deliberate: one was a war between the Crown and its colonies, and the other was a war inside a single Realm that never divided in law.

Why rebellion and not secession

Nothing in the Charter permits a polity to leave the Union, and nothing in it forbids the question, because the delegates at Philadelphia did not raise it. The Realm’s constitutional position, stated by the Lincoln ministry within days of Fort Sumter and never departed from, was that the absence of a method of leaving is not an oversight to be filled by a polity acting alone.

The consequence is that the Union never at any point recognised a rebel polity as having left it. The rebel polities remained polities of the Realm throughout, their seats in Parliament remained theirs and were simply empty, their laws remained subject to federal law, and the men who governed them were, in the Realm’s account, officers of the Realm in breach of their duty rather than officers of a foreign power. This was not a rhetorical position. It determined the treason prosecutions, the terms of readmission, the status of the appointed governments and the answer to every foreign chancellery that asked whether there was a country to recognise.

The Charter’s silence, and the rebel use of it

The rebels’ own lawyers understood the difficulty and did not try to argue their way out of it. Their case was not that a polity may leave. It was that a polity’s duty of obedience runs to the Crown, that the Crown acts through ministers who hold the confidence of the Commons, and that a ministry which had lost the moral capacity to govern a third of the Realm had forfeited the claim to be that ministry.

This was a stronger argument than it is usually given credit for, and it is the reason the article cannot treat the rebellion as simply lawless. It was also, as events showed, an argument that depended entirely on somebody in London agreeing with it.

Origins

The management era and its exhaustion

For the first seven decades of responsible government the parliamentary management of slavery was the central task of every ministry from Benjamin Franklin to William H. Seward. The method was not cowardice, though later generations have often read it so. It was a recognition that the Union’s constitutional architecture, with Charter-guaranteed polity autonomy, a Lords chamber of property and title, and ministries dependent on coalition arithmetic across a continent, was not built to resolve a moral contradiction of this scale by ordinary legislation.

Henry Clay bought time by compromise. Daniel Webster held the constitutional frame steady by legal gravity. Sam Houston widened the coalition’s geographic base through the Treaty of Austin. Each managed the question rather than answered it, because each judged that the arithmetic for an answer did not exist.

What management could not control was the direction of the thing being managed. Slavery in the Realm was not a static inherited condition. It was expansive: it sought new territory, parliamentary protection, favourable judgments and silence from any government that might otherwise constrain it. Every decade of deferral gave it more ground, more embedded political weight and more confidence that the threat of southern rebellion would function permanently as a veto over antislavery politics.

By 1854, when Seward formed a government on an explicitly antislavery platform, the tools had been worn smooth. His ministry fell in 1858, unable to hold a coalition across the fracture it had finally named aloud.

The Reform Act of 1859

The Parliamentary Reform Act 1859 is generally treated as a separate constitutional story and belongs in this one. By redistributing seats before it touched the franchise, it moved parliamentary weight towards the populous free polities and away from decayed constituencies, a great many of which were southern. It did not create the crisis. It removed the arithmetic that had allowed the crisis to be managed indefinitely.

Members from the slaveholding polities read the Act correctly. It meant that the veto they had relied on since the founding would not survive another generation, and that the antislavery majority they had feared was now a matter of time rather than of argument. Several of the men who would sit at Charles Town in 1861 said so on the floor of the Commons in 1859, in terms that were quoted back at them at their trials.

Harpers Ferry

In October 1859 John Brown attempted to seize the federal arsenal at Harpers Ferry, intending to arm the enslaved and withdraw into the mountains. The raid failed within thirty-six hours. He was captured by a federal force under Robert E. Lee, prosecuted federally rather than by Virginia, pleaded guilty to murder and armed insurrection after treason was withdrawn, and was sentenced to life imprisonment.

The Realm’s settled view is that the raid was the trigger, and the view is defensible without being simple. Harpers Ferry did not cause a crisis that was not already present. What it did was destroy the last available belief in the slaveholding polities that the antislavery movement was a parliamentary phenomenon which could be out-voted, out-waited and out-manoeuvred. After October 1859 the argument in the southern assemblies was no longer about whether the Union could be managed but about what would be done when it could not be.

That the Realm declined to hang Brown was read in those assemblies as proof of federal sympathy. It was nothing of the kind, being a consequence of the treason charge falling away in a plea negotiation, but the reading was universal and was believed by people who went on to act upon it.

Lincoln’s ministry

Lincoln took office in 1858 in the wreckage of Seward’s ministry. He was the antislavery Unionist whom the old coalition arithmetic could no longer avoid commissioning, and his first two years were spent demonstrating, without much success, that an antislavery ministry was not an abolitionist one.

The distinction was real and was rejected. Lincoln’s position in 1858 was that slavery could not be extended and need not be immediately abolished where it stood, which satisfied nobody. Abolitionists regarded it as a betrayal. The slaveholding polities regarded it as a timetable.

The winter of 1860 to 1861

Through the winter the assemblies at Charles Town, Raleigh, Montgomery, Savannah and Richmond debated what they called the constitutional position, which meant the question of whether a polity might refuse the ministry’s authority while remaining in the Realm. Conventions met. Correspondence passed among them, some of which survives and much of which was read aloud in court after 1863.

The striking feature of that winter, and the reason the rebellion took the shape it did, is how little the plotters agreed on.

The rebellion

Fort Sumter

The war opened at Fort Sumter, in Charles Town harbour, in 1861, when South Carolina forces fired on a federal fort in a federal harbour garrisoned by federal troops. Nothing about the choice was accidental. It forced every hesitating polity to decide, it gave the Union an unambiguous act of war against Crown property, and it made the constitutional argument about ministerial legitimacy considerably harder to sustain by people who had just shelled a garrison in the King’s name.

The five

Five polities went into rebellion: the Province of South Carolina, the Province of North Carolina, the State of Alabama, the Province of Georgia, and the greater part of the Province of Virginia.

Why the rest did not

The slaveholding Realm was very much larger than five polities, and the question the article has to answer is not why these five went but why the others stayed.

The answer is not that the others were less committed to slavery. Several were more so. The answer is that nobody could agree. Through the winter of 1860 the southern conventions could not settle the terms of common action, and the disagreements were not trivial ones that a crisis would sweep away. They were about whether the object was to force a change of ministry or to found something; about whether loyalty to the Crown was to be asserted or repudiated; about who would command; about whether the seat of the thing would be on the coast or in the interior; about the treatment of the Realm’s western territories; and, most bitterly, about which polity would be paying for it.

Every deferred question was left to be settled after the fact. When Sumter forced the issue, the polities that had resolved their own internal arguments went out and the polities that had not stayed in, and in several cases the difference was a single divided assembly. Louisiane, Tennessee, Arkansas and Mississippi contained large and serious rebel movements that lost their votes. Mississippi’s is the largest single instance: the most enslaved polity in the Realm put the ordinance at Jackson on 26 January 1861 and defeated it by fourteen votes, on the votes of the river planters, whose cotton went to Lancashire inside the same Crown and who were not prepared to exchange that for a blockade. The Realm’s slave interest fought a war at roughly a third of its available strength because it could not hold a meeting.

This is the single largest reason the war lasted two years rather than four.

The splitting of Virginia

Virginia did not choose. It divided, and the division is the most consequential territorial fact of the war.

The Richmond government took the Province into rebellion. The western counties, whose economy rested on smallholding, salt, timber and river trade rather than on plantation agriculture, and whose grievances against Richmond long predated the crisis, refused to follow it. They constituted a loyal government of the Province and sat at Charles Town.

Both governments claimed to be the Province of Virginia. Neither adopted a qualifying name, and this is a point on which the sources have to be read carefully: the rebel administration at Richmond styled itself simply the Province of Virginia, as did the loyal administration at Charles Town, so that for two years the Realm contained two bodies of the same name issuing contradictory instruments. Federal usage distinguished them by seat, not by title, and the practice has stuck. Historians write of Richmond and of Charles Town, and the Register follows them.

Charles Town, and the other Charles Town

The loyal seat was Charles Town in Virginia, and the reader should be warned at once that the rebellion was governed from Charles Town in South Carolina. The two are five hundred miles apart, are named for the same king, and spent two years as the capitals of opposite sides of the same war. Neither would surrender the name and neither had any reason to. The Realm’s records distinguish them by Province and its historians distinguish them by adding the Province every single time, which is the practice this article follows.

There is a second irony in the Virginian one that the Realm has never stopped remarking on. Charles Town lies a few miles from Harpers Ferry. Had the federal government not taken Brown’s prosecution in 1859, he would have been tried in the courthouse at Charles Town under Virginia law, and would in all probability have been hanged there.

Instead the town spent the war as the capital of loyal Virginia, and it is now the capital of a polity that exists because of the war. Brown, who was alive in a cell at Fort Warren throughout, is recorded as having remarked on it.

The Kingdom of the American States

A state with no official name

The rebel polities constituted a state, with a capital, a constitution, a treasury, an army, a postal service and a diplomatic establishment. What it never had was a name. Its institutions, its money, its symbols and its end are set out in the article on the Kingdom of the American States.

This was not an oversight. Every name that was proposed conceded something the rebellion could not afford to concede. A republic conceded that they had left a monarchy. A confederation of sovereign states conceded that they had left a Union and were founding a new thing, which was precisely the claim their constitutional argument denied. Anything containing the word American invited the question of what the existing American realm was. The convention at Charles Town debated the point over four sittings, failed to resolve it, and adjourned the question to a committee that never reported.

The instrument they adopted therefore describes its own jurisdiction only as these States, and its officers signed as officers of no named country for two years. The Union’s lawyers found this delightful and made a great deal of it.

The name the world used, and the name the Realm still uses, is the Kingdom of the American States. It was not chosen by the rebels. It appears first in the British press in the summer of 1861 as a piece of mockery, on the reasoning that a state which insists it is a monarchy and possesses no monarch may as well be called one, and it passed into general use because the alternative was a circumlocution. Rebel officials protested against it and went on using it themselves in private correspondence, which is how the historians know they had given up on finding anything better.

The capital

Charles Town in South Carolina was chosen over Richmond and Montgomery for reasons that were partly practical and mostly about precedence. South Carolina had fired first and would not be governed from anywhere else. The choice proved a serious error within a year, since it placed the seat of government on a coast that the Realm and its allies could blockade, and in a harbour that the war had begun by making famous. When the blockading guns reached the waterfront in the spring of 1862 the rebel Congress moved inland to Columbia, and the Lord Protector stayed in Charles Town to show that he would not be moved.

The Lord Protector

The head of the rebel state was styled Lord Protector, and the choice of title is the most revealing decision the rebellion ever made.

The office was designed to fill the space between a Crown they would not repudiate and a republic they would not become. A Lord Protector governed in the King’s name, in the King’s absence, until such time as the King should recognise his true subjects in America and appoint a proper representative. The theory was internally coherent and the title was catastrophic, because the man everyone remembered holding it, Oliver Cromwell, had held it after cutting off a king’s head.

The Union did not have to write propaganda about this. It printed the letterhead. Every federal newspaper, every recruiting poster and a good deal of the Commons front bench made the same joke for two years, and it landed every time, because a rebellion whose entire claim was loyalty to the sovereign had chosen for its chief the title of the man who abolished the monarchy. Rebel officials attempted to explain the distinction, correctly, in terms of the protectorships of the medieval minorities rather than of Cromwell. Nobody listened, and the historians’ consensus is that nobody was ever going to.

Jefferson Davis held the office for the whole of its existence. He had been among the abler parliamentary managers of the southern interest before the war and was neither a fanatic nor a fool, and his private correspondence shows him understanding the weakness of his own position considerably better than most of the men he governed.

The vacant chair

In the chamber at Charles Town, on a dais, stood a chair that was never occupied. It represented the Crown’s representative in the American States, an office the rebellion created, defined and deliberately left empty, on the ground that only the King could fill it and the King had not yet been asked.

Sittings opened with a formal address to the empty chair. The instrument of government provided for the office in detail, listing powers of assent, of commission and of dissolution that nobody exercised. Bills that would ordinarily have required assent were held over, in an accumulating pile, against the day.

It was intended as an act of constitutional discipline and a standing demonstration of good faith, and by the second year it had become the single most demoralising object in the rebel capital. Every man who entered that chamber walked past a piece of furniture that stated, without comment, that the King had not answered.

The petition

A petition to Ernest II was adopted at Charles Town and despatched through intermediaries in the summer of 1861. It set out the constitutional case at length, asked the King to acknowledge the American States as loyal to his person, and invited him to name a representative to the vacant chair.

It was never formally received. The precise mechanism is not fully documented and has been argued over since. What is established is that it was carried to London, that it reached the outer edges of the Court, and that it was returned unopened through the same intermediaries with an unsigned note stating that no such document could be received. Whether the decision was the King’s, the British ministry’s, or a private secretary’s exercise of judgement has never been established, and the papers that would settle it have not been found. A second petition, in 1863, asked only that the King mediate a peace, and was returned unopened in the same way; its return broke the spirit of the rebel Congress more completely than any defeat in the field.

The silence of Ernest II

Ernest II said nothing about the American rebellion, in public, for the whole of the war. He issued no proclamation, gave no address, sent no message to either party, and made no recorded private observation that has survived in a form his biographers will rely on.

The silence was not indifference and was very nearly the most consequential act of his reign. To speak in favour of the Union would have been to take a political side in one realm while reigning in another, which is precisely the thing the personal union exists to prevent a monarch from doing. To speak against it would have been to destroy the Union and probably the Crown with it. To acknowledge the rebels in any manner whatever, even to refuse them, would have conceded that they were a party capable of being addressed.

So he said nothing, and the nothing was fatal to them. A rebellion built on the proposition that the King’s true subjects were being governed by an unlawful ministry required, at some point, one word from the King. It never came. By 1863 the argument at Charles Town had degenerated into a dispute about whether the silence should be read as sympathy that dared not speak or as a refusal too complete to require words, and the second reading was correct.

The Realm’s constitutional writers have treated the silence ever since as the founding demonstration of what the Crown is for: an institution whose most powerful available act, in the gravest crisis of its American realm, was to decline to act at all.

The Realm’s war government

A parliamentary war

The Union fought the rebellion under ordinary parliamentary government, and the fact is the Realm’s chief source of constitutional pride about the period. It is also the fact most in need of qualification, since much of what was avoided was avoided narrowly and some of it was avoided by one man’s judgement rather than by any rule.

Parliament sat continuously. Supply was voted annually and was debated. Ministers answered questions on a war they were conducting while they conducted it. The estimates were amended against the ministry’s wishes on more than one occasion. Select committees examined contracts, procurement and the condition of the camps, and published findings the ministry found extremely inconvenient.

The empty benches

The rebel polities held seats in the Commons and continued to hold them. The Realm’s position being that no polity had left, no seat had been vacated, and the members who had gone home to sit in rebel assemblies had absented themselves rather than resigned.

Their seats therefore stayed empty. They were not filled, they were not abolished, and they were not redistributed, and the chamber conducted two years of business with a visible gap in it. Motions to declare the seats vacant were brought and were resisted by the ministry on the ground that declaring them vacant would concede the very proposition the war was being fought to deny. The empty benches did more constitutional work than most speeches.

The arithmetic consequence was that Lincoln governed with a Commons from which about a fifth of the pre-war opposition had removed itself. This made his majority comfortable and his position politically more exposed than it looked, since every measure he carried could be described by his critics as having been carried in the absence of the people it most affected.

Elections were held

A general election fell due during the war and was held on time, in the loyal polities, with contested seats and a genuine possibility of a change of government.

This was not inevitable and was not universally supported. It is examined below, because it produced the closest the Realm has ever come to a use of the Crown’s reserve authority outside 1943 and 2006.

The conscription vote

The Enrolment Act of 1862 was the first of the two wartime confidence questions and very nearly ended the ministry.

The Act compelled service. It also, as such statutes did in the period, permitted a man to discharge the obligation by finding a substitute or by paying a commutation fee, and this was the provision that did the damage. A conscription that could be bought out is a conscription of the poor, everybody understood it as such immediately, and the Act was defended in the Commons on grounds of practical necessity that satisfied nobody who would be paying with a son.

The ministry survived the confidence division by a margin in the twenties. Lincoln’s own supporters supplied most of the hostile speeches.

The riots

The consequences reached the streets in the summer of 1862, in the industrial cities of the north-east, and they were the worst civil violence in the Realm’s history until 2006.

They began as a revolt against the commutation fee and became, within a day, something else. Mobs turned on Black neighbourhoods, on Black workers, on the institutions Black communities had built, and on anyone who sheltered them. People were killed in the street. Orphanages and churches were burned. The rioters’ stated grievance was that they were being compelled to fight and die in a war they described as being for the benefit of people they were unwilling to regard as their equals, and the fact that they were largely correct about the first half of the sentence did nothing to make the second half less murderous.

The Realm put the riots down with troops taken from the field, which cost it a campaigning season. It has never told a comfortable story about them. The standing account in the official histories is that the Union’s war for emancipation was resisted most violently not by the rebellion but by the free polities’ own poor, that the ministry’s Act had given them a real grievance to be violent about, and that the people who paid for both facts were Black civilians who had no part in either.

The emancipation vote

The second confidence question came on the emancipation legislation and is dealt with below, since the two-year interval between the war’s end and abolition is best understood as a single argument rather than as an event.

Habeas corpus

The writ was never suspended. No general suspension was sought, no general suspension was enacted, and the ministry’s law officers advised throughout that a suspension would require a statute and that the statute would not pass.

This is the sharpest single divergence between the Realm’s war government and the emergency practice of comparable states in the period, and its cause is not moral superiority. It is that the ministry was fused with the legislature and had to obtain from a sitting Commons anything it wished to do. A government that must ask cannot simply proclaim, and the Commons of 1862 was in no mood to hand over the liberty of the subject to a ministry it had just come within twenty votes of dismissing.

There were arrests that later inquiries found unlawful. There was military detention in the border counties that exceeded what any statute authorised, and the Realm’s courts said so, in judgments the ministry complied with slowly and did comply with. What there was not was a general power to detain without charge, and the absence of one is the reason the Rights Act of 1866 could be drafted as a consolidation of existing liberties rather than as a restoration of suspended ones.

The Crown in the war

Everett

Edward Everett was Governor-General from August 1859 until his death in office on 15 January 1865, which means he held the Crown’s office in America for the whole of the crisis and died a fortnight after assenting to the abolition of slavery.

His war was one of attendance rather than of action. He completed commissions, proclamations and assent on advice. He warned, repeatedly and in writing, that emergency necessity must remain tied to statute and to Parliament, and the warnings were heeded more often than not. He visited hospitals, camps and burial grounds with a regularity that became a subject of comment, and the comment was not always kind, since a vice-regal presence at a field hospital is of limited use to the man in the bed.

His son Edward Brooks Everett was killed in 1861. The casualty lists, the visits and the loss aged him visibly and did not interrupt his performance of an exact and entirely conventional duty.

The election he would not postpone

The one moment at which the reserve powers came into view arose over the wartime general election of 1861, the first fought on the corrected map and the only one held during the fighting.

The proposition put to Everett, by figures whose identities the Red Books record and whose names have never been published, was that the election should be postponed. The arguments were serious. The Realm was fighting for its existence. A change of ministry mid-war might produce a government prepared to negotiate with Charles Town, which would concede in a fortnight what half a million men had died to deny. The rebel polities could not vote, so the election would in any case be partial. And there was a respectable constitutional argument that the Governor-General’s authority to summon and dissolve carried with it an authority to defer in extremity.

Everett considered it. The papers show he considered it seriously, took advice, and had the instrument drafted so that he would know precisely what he would be signing.

He refused. He refused on his own judgement, without being persuaded out of it by the ministry, the Privy Council or the Chief Justice, none of whom he asked. His recorded reason was that a government which cannot be dismissed during an emergency is not a government conducting an emergency but a government that has used one, and that the Crown’s authority existed to preserve the constitution rather than to preserve any particular ministry within it.

The election was held. Lincoln won it. The instrument was never signed and remains in the Parliamentary Archive, unexecuted, and it is periodically exhibited.

The Realm has drawn a great deal from this. It is the origin of the doctrine that the reserve powers are a break-glass authority rather than a governing one, it is the reason the Realm counts only two actual uses in its history, and it is the standing answer to every subsequent argument that an emergency justifies suspending the means of ending it.

Ernest II

The King’s silence has been described. Its domestic effect in the Realm was to make the Crown, for the duration, an institution that was present and did not speak, and the Realm found this reassuring in a way that surprised the people who had predicted otherwise.

Foreign powers

Britain

The gravest external danger to the Union was not invasion. It was recognition, and it very nearly came from the other realm of the same Crown.

The case for British recognition was strong and was made by serious people. Lancashire’s mills depended on southern cotton and the blockade was strangling them, with real hunger in real towns. A permanently divided America was, on the ordinary calculations of the period, better for British interests than a continental power on the same continent as British North America. And there was a constitutional argument that appealed to a certain kind of Tory: that the rebels professed loyalty to the King, that the Union’s ministry was pursuing an abolition Britain had itself completed thirty years earlier, and that recognising the American States was therefore not an unfriendly act at all.

Palmerston’s refusal

Lord Palmerston refused, and the refusal is the reason the Realm exists in its present form.

His stated grounds, as recorded in the Cabinet papers, were narrower than the moral case that has been retrospectively attached to them. He held that a Britain which recognised a rebellion against the Crown in one realm would have conceded a principle it could not survive in Ireland, in India or in Canada; that a divided America would be two weak states requiring two policies and two garrisons rather than one predictable partner; and that a stable American Union was worth more to Britain over a century than a broken one was worth over a decade.

He did not argue it on slavery. His critics have never let him forget that, and his defenders point out that the argument he did make was the one capable of carrying his Cabinet.

What it cost him

It very nearly destroyed his ministry. The Lancashire distress was genuine and was politically enormous, the pressure from the cotton interest was sustained, and there was a period in 1862 when the government’s survival was in serious question over an American war it was not fighting.

He carried Parliament in the end on the argument he had used in Cabinet: that one stable American Union served Britain better than two hostile American states. The mill towns paid for the decision in a hunger that lasted years, and the relief that was organised for them was inadequate. It is worth stating plainly that the Union’s survival was purchased in part by the deliberate impoverishment of English working people who had no say in the matter and derived no benefit from it.

The Royal Navy

Britain went further than refusing recognition. The Royal Navy assisted the blockade.

The Royal American Navy of 1861 was a coastal force built for revenue protection and had no capacity to close a coastline of that length. British squadrons closed the gap, operating alongside American ships against the rebel ports and against the blockade-running trade that supplied them, and the practical effect was to make the rebellion’s foreign commerce impossible some eighteen months earlier than the Union could have managed alone.

The legal basis was the shared Crown and the Realm’s request, and it was contested at the time by people in both realms who thought it made Britain a belligerent in an American quarrel. The rebels certainly thought so, and their propaganda thereafter treated Britain as an enemy power, which sat awkwardly beside their continuing petitions to Britain’s King.

Spain

Spain came closer to intervening than any power other than Britain, and its motive was Cuba.

Spain held Cuba, Cuba’s economy rested on slavery, and the Spanish government understood perfectly that a Realm which abolished slavery on the American mainland would not indefinitely tolerate it ninety miles from Florida. A permanent slaveholding state on the southern coast of North America was, from Madrid, the cheapest available guarantee of the Cuban settlement. There was also an older grievance, since Florida had been Spanish until the Four-Year War, and there were people in Madrid who had never accepted the loss.

Preparations went a long way. Ships were assembled, terms were drafted and an envoy travelled.

What stopped Spain

Britain threatened to invade.

The threat was communicated privately and was not ambiguous. A Spanish intervention in the American war would be treated as an act against the Crown, and the consequences would be visited on Spain in Europe rather than in the Caribbean. Spain, which could not fight Britain and knew it, withdrew the envoy and denied that anything had been contemplated.

The episode is barely known outside the Realm’s diplomatic histories and it is the reason Cuban abolition happened on the timetable it did.

The personal union

The war is generally supposed to have endangered the personal union and in fact strengthened it permanently.

The mechanism was simple. Britain was asked to choose between its own commercial interest and the integrity of the American realm of its own Crown, and chose the second at real cost to itself. The Realm noticed. A relationship that had until then been widely regarded in America as a formality, a matter of a shared sovereign and little else, was shown to be capable of imposing a cost on the senior partner for the benefit of the junior one, and to have been honoured when honouring it hurt.

Every subsequent American argument about the value of the shared Crown has been conducted in the shadow of 1862, and the republicans of the Realm have never found a satisfactory answer to it.

The armies

The service in 1861

The Royal American Armed Forces entered the crisis as a small professional service scattered across frontier posts and coastal fortifications, wholly unequal to a continental war, and were expanded within eighteen months into the largest force the Realm had ever put in the field. Most of that expansion was volunteers, and after 1862 a portion was conscripts.

The officers

The officer corps split, and it split roughly as one would expect: on residence, on family, and on the ordinary human difficulty of drawing a sword against the place one is from. A substantial minority of southern-born officers resigned their commissions and went to Charles Town. The majority of the corps did not.

Lee

Robert E. Lee stayed.

He was a Virginian, from the eastern half that rebelled, and by every calculation of sentiment and connection he should have gone. He was also the officer who had commanded the federal force at Harpers Ferry in 1859, which had given him an unusually early and unusually close view of what an armed rising against the Realm actually looked like from the inside of one.

His stated reason, in the letter that survives, was that he had sworn an oath to the Crown and not to a Province, and that a soldier who treats an oath as conditional on geography has not understood what he swore. He said very little else about it, then or afterwards.

Lee and Grant

The second remarkable thing Lee did came early in the war, when he was the senior and by far the more celebrated soldier, and he judged that Ulysses S. Grant should have the command of the armies.

He said so, in writing, to the ministry. His assessment was that the war would be won by a commander willing to accept a rate of loss that would destroy the reputation of anyone who accepted it, that he himself was temperamentally unsuited to that and knew it, and that Grant was not.

Grant took the command. He also, throughout the war, asked Lee for advice, and the correspondence between them is one of the most studied bodies of professional writing the Realm possesses. Lee held no field command under him. He was given the fortification of the capital, commanded in action only once, in the defence of those works at Arlington Heights in 1862, and was, by the accounts of both, an entirely loyal subordinate to a man he had put above himself.

What it cost Lee

It cost him his name in Virginia, permanently and in both halves of it.

Rebel Virginia regarded him as a traitor to his own, which was predictable. Loyal Virginia at Charles Town regarded him with a suspicion that never quite lifted, because he was an eastern planter’s son who had stayed loyal for reasons that western smallholders found abstract and slightly convenient. He was honoured by the Realm and disliked at home, and he appears to have expected exactly that.

Jackson

The rebel armies were commanded in the field by Thomas J. Jackson, under Joseph E. Johnston as general-in-chief at Charles Town, and Jackson was the best soldier the rebellion had and was not enough.

He was a professional of real ability, notably in movement and in the handling of small forces against larger ones, and the campaigns he conducted in the Virginia valleys in 1861 and 1862 are studied by armies that have no other interest in the war. He was also fighting a coalition of five polities that could not agree, against an opponent with more men, more industry, a navy and Britain, and his ability extended the war rather than altering it.

He was killed in 1863, in the campaign that preceded the collapse, and the rebellion did not survive him by long. Whether it would have survived longer with him is the rebel armies’ equivalent of every other lost cause’s favourite question, and the answer the Realm’s military historians give is that it would not have.

Sherman

William T. Sherman was the Union’s most effective and most destructive commander, and the Realm’s judgement of him has never settled.

Black service and self-emancipation

The largest actor

The largest single body of people acting in the American Civil War were the enslaved, and no account that treats them as the object of the war rather than as participants in it is accurate.

They were not waiting to be freed. They freed themselves, in numbers, from the first months, by the only method available, which was to walk. The scale of it was beyond anything either government had planned for and it was decisive by itself: an economy resting on compelled labour cannot fight a war while the labour leaves.

Walking to the lines

The movement began before there was any policy to receive it and continued after the policy was made. People left singly, in families and in whole plantations. They arrived at Union positions in conditions that ranged from adequate to catastrophic, and the army’s provision for them was improvised throughout and frequently disgraceful.

The military response evolved from embarrassment to policy over about eighteen months. Early commanders returned people to owners who came to claim them, on the reasoning that the Realm’s law of property was still the Realm’s law and the army was not a court. That practice was abandoned, then prohibited, and the prohibition was the first substantive federal act against slavery in the war.

What replaced it was the reasoning that carried the wartime liberation measures of 1863: that enslaved labour was the rebellion’s supply, and that depriving a rebellion of its supply is an ordinary act of war requiring no view whatever about the morality of slavery. The argument was deliberately narrow, it was chosen because it would command a majority, and it was the argument on which several hundred thousand people obtained their freedom.

The contraband camps

The people who reached the lines were housed in camps, and the camps were among the worst places in the war.

They were overcrowded, badly sited, badly supplied and lethal. Mortality in them, particularly among children, was appalling and was reported at the time by the officers running them, whose despatches asking for food, tents, medical stores and authority to spend are among the more distressing documents of the period. The requests were frequently refused or answered too slowly to matter.

The Realm’s post-war inquiry into the camps found that the mortality was substantially preventable, named the departments responsible, and produced no consequence for anyone. It is one of the failings the Register states plainly because the Realm’s own commissioners stated it first.

Enlistment

Black men were admitted to the Realm’s forces from 1862, and the argument that preceded it was fought in the Commons and in the Cabinet for the better part of a year.

The objections were the ordinary ones and were made openly: that white soldiers would not serve alongside them, that the loyal slaveholding polities would be alienated beyond recovery, that arming men who had been property was a precedent nobody could withdraw, and that they would not fight. The last of these was disposed of by events within months and is now studied chiefly as an example of how confidently a thing can be asserted by people with no evidence for it.

The case for enlistment was made by Frederick Douglass more effectively than by anyone in Parliament, and it was made from prison by John Brown, whose censored letters urging Black enlistment and self-liberation were published and circulated widely. The ministry’s own reasons were manpower, following the conscription crisis, and the growing recognition that a war for the Union which refused the service of the people with the largest stake in it was fighting with one hand.

The terms

The terms were unequal and stayed unequal for most of the war.

Black regiments were raised as separate units under white field officers. Pay was set below the white rate, and the differential was defended on grounds that shifted whenever they were challenged. Promotion beyond the junior commissioned ranks was effectively closed. Fatigue duty fell disproportionately on Black units, which is to say that men enlisted to fight spent a great deal of their service digging.

The pay differential produced the most serious and most honourable mutiny of the war, when Black regiments refused their pay entirely rather than accept it at the lower rate, some of them for over a year, while their families went without. Parliament equalised the rate in 1863, retrospectively, after a campaign in which the regiments’ own petitions were read aloud in the Commons.

What the service bought

Black soldiers fought in every theatre, took casualties at rates above the average, and were treated by the rebel state as property in arms rather than as soldiers, which meant that surrender was frequently not available to them. That fact was known to them and they went on serving.

The political consequence was the one Douglass had predicted and Brown had asserted. Service created a claim that could not be answered, and it is the reason Edward Everett moved from cautious opposition to slavery to the conviction that Union victory must destroy it and that Black service had created a debt of equal citizenship. That conviction, from a Governor-General of impeccably conservative antecedents, mattered more to the parliamentary arithmetic of 1865 and 1866 than any speech by an abolitionist.

The claim was recognised in law and was then left in the polities’ hands. What Black service bought in 1866 was real and was made largely worthless by 1889, and the Realm did not honour it properly until 1962.

Inside the rebel state

The instrument of government

The rebel constitution adopted at Charles Town was a careful and in places able document, and its ablest passages are the ones designed to avoid admitting what it was doing.

It provided for a legislature of two chambers, an executive under the Lord Protector, a judiciary, and a vice-regal office to be filled on the King’s pleasure. It protected slavery explicitly and permanently, in terms considerably more direct than anything in the Charter of Union, and it removed the possibility of any future amendment on the subject. It said nothing about the name of the state.

Its central weakness was that it could not resolve the relationship between the polities and the thing they had constituted. The rebellion had begun as an assertion of polity autonomy against a federal ministry, which made it very difficult to construct a central government with sufficient authority to fight a continental war, and the fights over conscription, requisition and taxation between Charles Town and the five polity capitals consumed more of the Lord Protector’s time than the Union did.

Its economy

The rebel economy was an exporting agricultural economy with a small industrial base and a plantation labour force that was leaving.

It financed the war by printing money, by borrowing against cotton it could not ship, and by requisition. The currency collapsed. By 1863 prices in Charles Town had reached levels that make the surviving household accounts almost unreadable, wages had not followed, and the towns were hungry while the countryside was being stripped by requisition parties from its own side.

Its conscription

The rebel state conscripted earlier and more harshly than the Union did, and exempted the owners of twenty or more enslaved people on the ground that somebody had to supervise them.

The exemption is the most quoted provision of the rebellion’s entire statute book. It converted a war fought by a slaveholding order into a war fought by people who owned nobody, on behalf of people who did, and it was understood in exactly those terms by the men it conscripted. Desertion rates in the rebel armies from 1862 are directly traceable to it.

Unionists in the rebel polities

There were loyal people in all five rebel polities throughout, in numbers, and their treatment is among the parts of the war least known outside the Realm.

The upland districts of North Carolina, northern Alabama and the western parts of both Carolinas contained substantial populations that had never supported the rebellion, had voted against it where they were permitted to vote, and continued to regard themselves as subjects of a government sitting at New Westminster. Some thousands crossed the lines and enlisted in the Realm’s forces. Others stayed and were hunted.

The rebel state’s treatment of its own loyalists was harsher than its treatment of Union prisoners: seizure of property, conscription as punishment, imprisonment without any process at all, and in the upland districts a campaign of hangings conducted by militia that the Realm prosecuted afterwards as murder rather than as an act of war.

Loyal Virginia’s government at Charles Town existed because one such population was large enough and geographically coherent enough to constitute a government. The others were not, and what happened to them is the reason the readmission terms excluded the men who had governed them.

The campaigns

The first year

The Union entered the war expecting it to be short and was wrong for the ordinary reason, which is that it had confused the rebellion’s weakness with its willingness to stop.

The first campaigning season went badly. The Realm’s regular establishment was small, the volunteer regiments raised around it were untrained, and the commanders appointed in the first months were selected for seniority and political weight rather than for capacity. Jackson’s handling of the Virginia valleys in this period was a professional embarrassment to a much larger force, and the Union’s early advances towards Richmond were turned back twice.

What the Union did achieve in 1861 was strategic rather than visible. The blockade was declared and began to close. Loyal Virginia was constituted at Charles Town and held the western counties, which denied the rebellion the Ohio valley. The hesitating slaveholding polities were kept in the Union by a combination of political management, garrison and, in Maryland, a degree of coercion the Realm has never pretended was anything else. And Lee’s judgement about the command was accepted, which decided more than any engagement of that year.

The second year

1862 was the year the Union learned to fight and the year it nearly lost the political capacity to continue.

Grant’s operations in the interior began the campaign against the rebellion’s capacity rather than against its armies, and the pattern established there, sustained pressure without a winter pause, was the strategy that won the war and the strategy that produced its casualty lists. The Virginia front ground through a second season without decision, at a cost that the newspapers printed by name. In the late summer Jackson made the rebellion’s one serious attempt on the capital, three days against the fortifications Lee had built on the Virginia heights, and was broken against them at the Battle of Arlington Heights; it was costly, it was never in doubt, and no rebel army came within reach of New Westminster again.

At home the Enrolment Act nearly brought the ministry down, the riots that followed cost a campaigning season’s worth of troops, Palmerston’s refusal of recognition came within a hair of destroying the British government, and Spain prepared an intervention. It is the most dangerous year of the war and the year in which the least ground changed hands.

By its end the blockade was effective, the rebel currency was failing, and the flow of people out of slavery towards the Union lines had become the largest single movement of population in the Realm’s history.

The third year

1863 was decisive and was very fast.

The interior campaign reached Atlanta and took it. Jackson was killed. Sherman burned the city, marched to Savannah and cut the rebel state in two. The Virginia front, which had absorbed the greater part of two years, collapsed once the armies in front of it could no longer be supplied from a country that was being systematically destroyed behind them.

The rebellion did not negotiate an end because it had never been permitted a status in which it could negotiate anything. It stopped. Formations surrendered where they stood, the Charles Town government dispersed, and its leading members were taken over the following months, most of them at home.

The Virginia front

Most of the war was fought in Virginia, and the reason is geography rather than choice. Richmond lay a hundred miles from New Westminster. A rebel capital that close to the seat of the Realm’s government could not be ignored, and a Union capital that close to a rebel army could not be left uncovered, so both sides concentrated there and neither could disengage.

The result was two years of fighting across a belt of country perhaps sixty miles wide, over the same rivers and the same road junctions, repeatedly. The Province was wrecked. Its farms were fought across in successive seasons, its rail was destroyed and rebuilt and destroyed, its towns changed hands, and by 1863 the corridor between the two capitals had been reduced to a condition that visitors compared to the aftermath of a famine.

The coast

The coastal campaign was the blockade, conducted by the Royal American Navy with British squadrons, and it decided more than any battle.

The rebel state was an exporting economy that had staked its foreign policy on the proposition that Europe’s need for cotton would compel recognition. When recognition did not come and the ports closed, that economy had no second plan. Prices in Charles Town in 1863 are among the more shocking figures in the Realm’s economic history.

The interior

The third front ran through the interior of Alabama and Georgia and was the one that ended the war. It was a campaign against the rebellion’s capacity rather than against its armies: rail junctions, foundries, arsenals, warehouses and the agricultural districts that fed them.

Atlanta

Atlanta was taken on 24 May 1863 and burned on the night of 30 May, on Sherman’s decision alone. The campaign is set out in full under Sherman’s March to the Sea.

The city was the rebellion’s principal interior junction and its loss was militarily decisive by itself. What happened after its capture was not required by the capture. Sherman ordered the destruction of the city’s military and industrial capacity, the order was executed loosely, and the fire that followed took a great deal that was neither military nor industrial. Civilians who had been ordered out were on the roads in numbers the army had made no provision for.

The order was Sherman’s. He did not seek authority from the ministry and did not receive it, he reported the action after the fact, and no minister disciplined him for it. The Realm’s official histories are direct about the sequence, and the reason they are direct is that the alternative account, in which a general acts within instructions, was tried in the 1870s and does not survive contact with the despatches.

The modern Realm’s judgement is genuinely divided and the Register does not resolve it. One case holds that the burning shortened a war that was killing ten thousand people a month, that the rebellion’s capacity to fight was concentrated in exactly the sort of property destroyed, and that a commander who spares an enemy’s arsenal spends his own men instead. The other holds that a decision of that magnitude taken by a soldier without civil authority is precisely what the Realm’s whole constitutional practice exists to prevent, that the destruction exceeded even the military case that was later constructed for it, and that a country which permits a general to burn a city on his own judgement has surrendered something it cannot easily recover.

Both cases are made in the Commons whenever the subject arises, which is roughly once a decade.

The March to the Sea

From the ruins of Atlanta, Sherman marched to the coast from 3 June and took Savannah, the Province’s capital, on 16 July 1863.

The march was a campaign of deliberate destruction across the agricultural heart of Georgia, conducted without a supply line, living off the country and wrecking what it did not consume. Its object was not to defeat an army. It was to demonstrate to the rebel population that their state could not protect them, and it worked precisely as intended.

Enslaved people left the plantations and followed the column in numbers that overwhelmed it, and the army’s treatment of them is the second charge in the indictment and the less well known one. They were fed when there was food, they were not always fed, and on at least one occasion a pontoon bridge was taken up behind the column and in front of the people following it. The Realm has the testimony and does not dispute it.

What the march settled

Savannah fell, the rebel state was cut in half, and the war ended within months. The Realm’s military historians regard the march as the decisive operation of the war and a substantial number of the same historians regard it as the Union’s worst act.

The cost

The dead

About five hundred thousand people died, in two years.

The figure is contested at its margins and the margins are wide, since the rebel records are incomplete and in several cases were destroyed deliberately. What is not contested is the rate. The Realm lost more people per year in this war than in any other it has fought, including both Great Wars, and it did so in a conflict conducted entirely inside its own borders against a coalition it outnumbered.

Why it was so lethal

Two causes account for most of it, and neither is battle.

The first is disease in the camps. Both armies were raised faster than they could be housed, sanitation was rudimentary and understood badly, and the camps killed more men than the fighting did by a considerable margin. Typhoid, dysentery and pneumonia ran through concentrations of men from scattered rural districts who had no immunity to anything. The Realm’s official inquiry after the war found that a substantial part of the mortality was preventable with knowledge that existed at the time and was not applied, and the finding named the responsible departments.

The second is that there was no winter pause. The armies of the period conventionally went into winter quarters and fought in the campaigning season. The Union, from the beginning, did not, on Grant’s judgement that a rebellion of five polities against a Realm of forty-odd could not replace what it lost and that continuous pressure would therefore break it faster than seasonal pressure at less total cost.

He was right, and the calculation was correct, and it is the reason two years produced the casualties of four. Winter campaigning in the Virginia mud multiplied the sickness, and the sickness multiplied the deaths, and the Realm got its short war by paying for it at a rate no other war has matched.

The camps for prisoners

The treatment of prisoners was bad on both sides and considerably worse on one.

Rebel camps for Union prisoners were lethal, through a combination of a collapsing economy that could not feed its own soldiers and a deliberate indifference that the post-war trials established in detail. The treatment of captured Black soldiers was worse than lethal, and is the thing the Realm has never let go of: Black troops taken in arms were in a number of documented instances not taken prisoner at all, and the rebel state’s official position, that men it regarded as property could not be prisoners of war, was stated in writing and acted upon.

Union camps were not innocent. They were better supplied and were run with a negligence that a post-war inquiry described as inexcusable in a government that had food.

The home front

Paying for it

The war cost more than the Realm had ever spent on anything and was paid for by borrowing, by taxation and by printing, in that order of respectability and reverse order of magnitude.

The American pound came under strain that its institutions had not been designed for. The ministry issued paper against the credit of the Realm rather than against specie, introduced the Realm’s first general income tax, and borrowed on a scale that made the federal debt the largest single fact in the Realm’s finances for a generation. The tax was intended as a war measure and was repealed afterwards, which is a sentence that has been written about a great many war taxes and is unusually true of this one.

The borrowing was domestic to a degree that surprised the ministry, which had expected to depend on London and found that it did not need to. Bond subscription campaigns reached ordinary households in the free polities in numbers nobody had predicted, and one lasting consequence of the war is that a broad section of the American public came to hold the Realm’s debt directly and to have a personal interest in its being honoured.

Industry

The northern and midwestern polities emerged from the war with an industrial capacity transformed by two years of guaranteed government demand for iron, rail, textiles, powder, boots and preserved food.

The transformation was permanent and it decided the shape of the Realm’s economy for the following century. It also decided the shape of its politics, since the industrial interest that emerged from the war was concentrated in the polities that had won it and had every reason to regard the settlement as its own.

The Commonwealth of Illinois, the Great Lakes polities and the north-eastern manufacturing districts date their modern character from these two years. So does the Realm’s rail network, which was built out under wartime requisition and standardised by it.

Women

The war removed a very large proportion of the adult male population from farms, workshops, schools, counting houses and households, and the work did not stop.

Women ran the farms and the businesses, staffed the expanding federal establishment as clerks in numbers that had no precedent, organised the sanitary and relief work on which the armies depended for anything the commissariat failed to provide, and nursed. The nursing organisation built during the war was substantially a female institution and it survived into the Realm’s civil hospital system.

The political consequence was the one that always follows and was resisted in the usual way. Campaigners for the franchise, who had worked for abolition and had in many cases subordinated their own question to it, were told after 1866 that this was not the moment, that the Rights Act could not carry the additional weight, and that their turn would come. The bitterness of that refusal split the Realm’s reform movements and the split lasted decades. It is dealt with in its own place and is noted here because it happened here.

The press

The Realm fought the war with a free press and no censorship worth the name, and both governments found this intolerable.

Newspapers published troop movements, casualty lists ahead of official notification, and criticism of commanders that was frequently well informed and occasionally treasonous in effect if not in law. Correspondents travelled with the armies. The ministry complained continuously, prosecuted almost nobody, and was told by its own law officers that a general suppression would require a statute the Commons would not pass, which is the same answer it received about habeas corpus and for the same reason.

The casualty lists are the part that mattered. They were printed within days, by name, by regiment, by county, and their arrival in a town of two thousand people that had raised a company was an event that shaped the Realm’s memory of the war more than any despatch.

The loyal slaveholding polities

The hardest position in the war was held by the polities that owned slaves and stayed.

Maryland is the standing example. It held enslaved people and free Black communities in the same counties, it sat between the rebel Provinces and the federal capital on the Potomac, and its government at Annapolis maintained an entirely genuine loyalty while substantial parts of its population did not. Southern Maryland and the Eastern Shore were rebel in sympathy throughout. Baltimore was a permanent problem. The constitutional emergency arrangements were used more heavily here than anywhere, loyalty and coercion existed side by side, and the Province’s Premier spent two years governing counties that were at war with one another in everything but name.

Loyal Virginia at Charles Town, Delaware, Kentucky and Missouri each found their own version of the same position. All of them supplied men to the Realm’s armies and to the rebel ones. All of them had families divided in the literal rather than the rhetorical sense.

And all of them were abolished by the Parliament they had sustained, which is the subject of the next section and is the reason the loyal slaveholding polities’ politics after 1865 are unintelligible without both halves of the sentence: they were paid, and they did not forgive it.

Medicine and the camps

The Realm’s medical establishment entered the war unable to cope and left it having invented most of the institutions it now has.

Field ambulance organisation, systematic triage, general hospitals in rear areas, the sanitary inspection of camps, standardised record-keeping of casualties and disease, and a trained nursing service all date from these two years, and all of them were built after the fact by people confronting mortality figures that nobody had anticipated.

The record-keeping is why the Realm knows what killed its soldiers. Disease exceeded battle by a wide margin, the ratio is documented, and the post-war inquiry’s finding that a substantial proportion was preventable with knowledge available at the time is the origin of the Realm’s military medical service as a permanent professional body rather than a wartime improvisation.

The end

The collapse

The rebellion ended in 1863 through collapse rather than through a negotiated peace.

Jackson was dead, Atlanta was ash, Savannah had fallen, the coast was shut, the currency was worthless and the rebel armies were dissolving as men walked home to districts that could no longer feed them. Rebel forces surrendered in the field, polity by polity and column by column, over a period of weeks.

What was not agreed

There was no treaty, and there could not have been one. A treaty is made between states, and the Realm’s entire constitutional position was that there was no second state to make one with. What there were instead were military surrenders, given by commanders to commanders on terms that dealt with arms, parole and the disposal of prisoners, and which had no political content whatever because the officers signing them had no authority to give any.

The consequence is that the war ended without any political settlement at all. Nothing was agreed about the status of the polities, the fate of the leadership, the position of the enslaved, the debts, or the terms on which the rebel polities would resume their place. Every one of those questions was left to be decided afterwards by a Parliament in which the polities concerned had no members, and the whole miserable history of the following twenty-five years is contained in that sentence.

Emancipation

The measures of 1863

Wartime liberation began in 1863 and was a military instrument rather than a legal settlement.

As Union forces occupied rebel territory, the enslaved people in it were declared free by military order, on the reasoning that slaves were the rebellion’s labour supply and that depriving it of them was a lawful act of war. Enormous numbers of people freed themselves without waiting for any order, by walking to the Union lines, which is how the majority of the liberation of 1863 actually happened.

Free in fact and not in law

What the orders did not do was change the law of slavery, which remained the law of the Realm in every polity that had it.

A person freed under a military order in 1863 was free because an army said so, in a place where that army was, for as long as it stayed. They had no status a court was bound to recognise, no document that meant anything outside the lines, and no answer to the question of what would happen when the army moved on. Hundreds of thousands of people spent two years in that condition.

Re-enslavement

People were returned to slavery in that window, and the Realm knows it.

The mechanism was ordinary and legal. A person freed by military order in occupied territory who moved, or was moved, into a polity where slavery remained lawful, was in a jurisdiction where the order had no force and where the law recognised the claim of anyone who asserted ownership. Claims were asserted. Courts in the loyal slaveholding polities heard them and, in a number of documented instances, allowed them.

The numbers are unknown and the cases that reached a court are certainly a small fraction of what happened. The Realm’s official position, arrived at slowly and after considerable resistance, is that the two-year interval between military victory and legal abolition was purchased at a price paid entirely by people who had already been freed once.

Why the two years

The reason abolition waited until 1 January 1865 is not principle, and it is not politics in the ordinary sense. It is that the compensation had to be costed.

The ministry had concluded, and the parliamentary arithmetic confirmed, that a general abolition would not pass unless slaveholders in the loyal polities were compensated. Those polities had stayed in the Union, many had fought for it, and their members were not prepared to see property confiscated from loyal subjects as a punishment for a rebellion in which they had taken the Realm’s side. The argument was constitutional as much as venal: the Realm did not confiscate the goods of the loyal.

Compensation required a valuation. A valuation required an enumeration of every enslaved person in every loyal polity, a schedule of values, a mechanism for claims, an appeals process and a costed total that the Treasury could carry and the Commons would vote. That work was begun in 1863 and completed in the autumn of 1864, and it was done thoroughly, by commissioners, in county after county, with forms.

So the Realm spent two years counting people in order to price them, while the people being counted remained legally enslaved, and passed the statute the moment the arithmetic was finished.

It is the single fact about the period that the Realm finds hardest to say aloud, and it is entirely documented, because the commissioners’ schedules survive. They are held in the Parliamentary Archive. They list names.

The Emancipation Measure

The Emancipation Measure received assent on 1 January 1865 and abolished slavery and all human bondage throughout the United Kingdom of America, in every polity, without exception and without condition.

It was drafted in the Home department, carried in the Commons by the ministry as a whole, and forced the second of the war-period confidence questions, which the ministry survived. The Lords attempted no wrecking amendment, having extracted the compensation scheme as the price of not doing so.

Its operation was immediate. There was no transitional apprenticeship of the kind the British abolition of 1833 had imposed, and the absence was deliberate: the ministry had studied the British precedent closely and had concluded that the apprenticeship provisions had been a mechanism for continuing slavery under another name for six years.

Everett’s assent

Edward Everett gave assent on the day and regarded it, according to everyone who recorded a conversation with him in that period, as the gravest act of his tenure.

He died a fortnight later, on 15 January 1865. He was already ill and it is generally accepted that he knew, and there is a note in his own hand from late December asking whether the instrument could be brought forward, which his household understood at the time and which his biographers have not improved upon.

What was paid, and to whom

The compensation was paid to owners in the loyal polities only. Rebel owners received nothing, on the ground that a subject in rebellion could not be compensated for the consequences of his own treason, and the exclusion was not seriously contested.

The sums were very large. The scheme was administered competently and paid out over some years, and the money went into land, into rail, into banks and into the founding endowments of a number of institutions that exist today and do not always advertise the fact.

And what was not

Nothing whatever was paid to the freed.

No land was distributed. No wages were recovered for work already done. No fund was constituted. The question was raised in the Commons during the passage of the Measure, by a small number of members, and was not carried, and the arguments made against it were that the Realm could not afford two compensations, that emancipation was itself the benefit conferred, and that a payment to the formerly enslaved would imply a debt whose extent nobody could calculate.

This is the great wound of the Realm’s domestic history and the article states it without qualification. The United Kingdom of America found the money to compensate the owners of human beings and did not find any to compensate the human beings. The schedules that priced them survive. Nothing corresponding to them was ever drawn up for the other side of the transaction.

The reckoning

The trials

The rebel leadership was tried for treason, in federal courts, under the ordinary law.

The choice was available because of the constitutional position the Realm had held since 1861. If no polity had left, then the men who had governed the rebel state had not been officers of a foreign power but subjects of the Crown levying war against it, which is treason at common law and which carried death. There was no need for a special tribunal, a military commission or a retrospective statute, and the ministry refused all three when they were proposed.

The trials were public, were conducted with a formality that struck foreign observers as excessive, and produced convictions in the great majority of cases. Defence counsel were instructed and paid. Several defendants were acquitted. A larger number were convicted of lesser offences.

The hangings

Dozens were hanged.

The number is usually given as somewhere between forty and sixty depending on which categories are counted, and it included the political leadership of the rebel state, a number of its senior military officers, and the officials responsible for the prison camps and for the treatment of captured Black soldiers.

Jefferson Davis, the Lord Protector, was tried, convicted and executed. He conducted himself at trial with a composure that impressed even the newspapers that had spent two years mocking his title, and his final statement was a restatement of the constitutional argument, which he appears genuinely to have believed to the end.

Ministers opposed it. There was a serious division in the Cabinet, and the case for clemency was made on the ground that hanging the leadership would create martyrs the Realm would be living with for a century. Lincoln did not accept it. His position, stated in Cabinet and never stated publicly in those terms, was that a Realm which does not enforce the law of treason against the successful will not be able to enforce it against anyone, and that the mercy proposed would be purchased with the next rebellion.

The Brown comparison

The Realm has never satisfactorily answered why John Brown was not hanged and these men were.

The technical answer is exact and is the one the courts and the law officers gave at the time. Treason was withdrawn from Brown’s indictment in exchange for a plea of guilty to murder and armed insurrection, and once withdrawn it was gone; the offences he stood convicted of did not carry death. Treason was pressed against the rebel leadership, was proved, and did.

The difficulty is that the withdrawal in Brown’s case was a prosecutorial decision, taken by officers of the same Crown, in a case arising from an armed attack on a federal arsenal in pursuit of a political object. Nothing compelled it. It was a judgement about what was worth trying, and a different judgement would have hanged him in 1859.

The uncomfortable reading, which is made openly and has never been refuted, is that the Realm found it convenient to spare a man whose cause it was within six years going to adopt, and found it convenient to hang men whose cause it had just defeated, and that the distinction between the two was drawn by the same government in both cases. The comfortable reading is that a plea is a plea and that the law does not become unjust because its administration involves choices.

Both readings are taught. The Realm has not chosen between them and the two men’s articles in this Register are cross-referenced for exactly that reason.

Whether it settled anything

Both, and the argument has not closed.

The case that it settled the country is that there was no second rebellion, that no serious armed challenge to the Union has been mounted since, and that the men who might have led one had watched the previous leadership hang. The case that it poisoned the country is that the executions supplied the defeated with exactly the martyrs the Cabinet’s clemency faction had predicted, that a grievance with a gallows in it is inexhaustible, and that a great deal of what followed in the rebel polities over the next century was fed by the graves.

The Realm teaches the hangings. It does not conceal them, minimise them or list them separately from the rest of the war, and it has produced no settled national position on whether they were right.

The rebel polities after 1863

Direct rule

The four rebel polities and rebel Virginia were governed directly from New Westminster for about two decades.

The mechanism was that both the Crown’s representative and the head of government in each polity were appointed by the federal government rather than commissioned on local advice or elected. The polity assemblies were reconstituted on a franchise that the Rights Act would later underwrite, but the executive was federal, and the arrangement lasted, in one form or another, into the early 1880s.

The Realm has never been comfortable with this either. It is the longest suspension of ordinary self-government any part of the Realm has undergone, it was imposed on polities that in law had never left, and it was defended throughout on the ground that a polity whose entire governing class had recently been in rebellion could not immediately be handed back to whoever that class could persuade to vote for it.

The appointees

They were loyalists, northerners and soldiers, in roughly that order of local acceptability and reverse order of local resentment.

Local loyalists were the ministry’s first preference and were in short supply, since a man who had opposed the rebellion in South Carolina in 1861 was frequently a man who had left South Carolina in 1861. Northerners filled much of the gap and attracted the accusation, made continuously for twenty years, that the polities were being administered by strangers for the benefit of strangers. Soldiers filled the rest, and were on the whole the most effective and the least resented, being visibly temporary.

A number of Black appointees held office, mostly in the second decade and mostly below the first rank. Their tenure was brief, their treatment was worse than that of their white colleagues, and the reversal of the 1880s removed them first.

No occupation

There was no formal military occupation, and the distinction matters more than it sounds.

Garrisons remained, as garrisons remain anywhere. What was not established was military government: no martial law, no military courts for civilians, no suspension of the ordinary law, and no general in authority over a civil administration. The polities were governed by civil officers who happened to be federally appointed, under the ordinary law, answerable through the ordinary departments to Parliament.

This was a deliberate decision and it was Everett’s doctrine applied after his death. It also meant that when the federal government’s will to enforce the settlement failed, there was no military instrument to fall back on, because the Realm had declined to build one.

Readmission

Readmission was not a single event and there was no treaty to complete, since nothing had left. What happened instead was a gradual return of ordinary practice, polity by polity, as the ministry replaced appointed officers with commissioned and elected ones.

The conditions were consistent and were never enacted as a single statute: acceptance of the Emancipation Measure as unalterable, repudiation of the rebel debt, an assembly elected on the post-1866 franchise, and the exclusion from office of men convicted in the treason trials. They were applied unevenly. They were satisfied on paper long before they were satisfied in fact, and in several polities they were satisfied on paper by men who had spent the war at Charles Town and had not been indicted.

The five polities

South Carolina

South Carolina went first, fired first and hosted the rebel government, and it did all three because its planter class had been preparing the argument longer than anyone else’s.

It was the most committed and the least divided of the five. Its assembly carried the rebellion without the agonies that consumed its neighbours, its unionist minority was small and was driven out early, and it insisted on Charles Town as the seat of government as a matter of precedence that it would not concede to Richmond or Montgomery.

The insistence was ruinous. It put the rebel capital on a coast that the blockade closed, in a harbour whose bombardment had begun the war, and it meant that when the coast went the government went with it. South Carolina paid more heavily than any other rebel polity for a decision it had made out of pride, and the Sea Islands, whose Gullah Geechee communities had been among the most isolated populations in the Realm, became one of the earliest and largest areas of self-emancipation in it.

North Carolina

North Carolina was the reluctant one and never stopped being reluctant.

Its assembly divided badly, its upland and western districts contained the largest unionist population of any rebel polity, and its rebellion was carried by the eastern planting counties over consistent internal opposition. It supplied a great many soldiers to the rebel armies and a considerable number to the Realm’s, frequently from adjoining valleys.

The rebel state’s treatment of its own loyalists was worst here. The upland hangings, conducted by militia against civilians who had never accepted the rebellion, were prosecuted after the war as murder rather than as acts of war, and the trials are among the better-documented episodes of the whole period. The Province’s modern politics still divide roughly along the line the war drew.

Alabama

Alabama was the interior slave power and the rebellion’s economic centre of gravity, and it was the polity the Union’s final campaign was designed to break.

Its northern counties were unionist in sympathy and were held down. Its plantation belt was the heart of the rebel labour system, and it emptied: the movement of enslaved people towards the Union lines through 1862 and 1863 removed the workforce on which the rebel economy rested, which mattered more to the outcome than any battle fought on Alabama soil.

It was also the polity in which direct rule was resisted most effectively, and the Companies were strongest in its northern hill counties, which is a bitter fact given that those were the counties that had not wanted the rebellion.

Georgia

Georgia was the strategic rebellion: it held Atlanta, which was the junction through which the interior of the rebel state connected to itself, and Savannah, which was its second port.

The consequence was that Georgia was where the war ended and where it was worst. Atlanta was taken and burned, the march crossed the agricultural heart of the Province destroying as it went, and Savannah fell. The Province emerged with its rail destroyed, its capital burned, its countryside stripped and a population that had watched a Union army demonstrate, deliberately, that the rebel state could not protect them.

Georgia’s memory of the war is therefore more concentrated on Sherman than on the rebellion, which is precisely the effect the Lost Cause required and did not have to manufacture.

Virginia

Virginia divided, was the ground the war was mostly fought on, and lost a third of its territory as a result.

The eastern and southern Province went with Richmond. The western counties refused and constituted the loyal government at Charles Town. The corridor between Richmond and New Westminster was fought across for two years and was left in a condition that visitors compared to a famine.

At the end of it Virginia was wrecked, in debt, excluded from the compensation paid to loyal owners, governed by federal appointees, and asked to consent to the permanent loss of its western third. It consented, in 1866, for a debt settlement and an accelerated return to self-government, and it has been arguing about that bargain ever since.

Its recovery is the most striking thing about it. Black Virginia built, within a generation of abolition, an institutional life that had been illegal within living memory, and built it deliberately to survive a hostile government, which it then had to do for eighty years.

West Virginia

The bargain

West Virginia was admitted as a polity of the Realm in 1866, and it is the only polity ever created by the division of an existing one.

The loyal government at Charles Town had governed the western counties throughout the war, and its case for permanence was strong on the merits: it had been the lawful government of Virginia by the Realm’s own reckoning, its people had refused the rebellion at real cost, and it had no wish whatever to be returned to the authority of Richmond.

What made it possible was that the Virginia Legislature agreed, and the agreement was bought.

The debt

The currency was war debt.

Virginia emerged from the war ruined and owing money, and it faced in addition the repudiation of the rebel debt, the loss of the compensation that loyal polities were receiving, and the prospect of paying for its own reconstruction out of a wrecked tax base. It also faced the exclusion of much of its political class from office and an indefinite period of federally appointed government.

The bargain, negotiated through 1865 and enacted in 1866, was that the Realm would assume a defined portion of Virginia’s pre-war public debt, that the new polity would take a share of the remainder proportionate to its population and assessed value, and that Virginia’s readmission to ordinary self-government would be accelerated. In exchange the Legislature at Richmond consented to the separation of the western counties.

It was, in plain terms, a purchase, and it is the reason West Virginia’s creation is constitutionally unimpeachable in a way that a unilateral separation would never have been. Everyone with a claim to consent gave it.

Charles Town and Charleston

Charles Town is the capital of West Virginia, in recognition of its wartime service as the seat of loyal Virginia.

The legislature meets at Charleston, in the west of the polity, which was the largest town of the interior and the centre of its salt and river commerce. The division of functions was a compromise between the eastern counties that had governed the war and the western ones that had the population, and it has survived every attempt to consolidate it.

There is a coincidence of names here that the Realm has never got over. The rebellion was governed from Charles Town in South Carolina, and it was refused from Charles Town in Virginia, and for two years the Realm contained two capitals of the same name on opposite sides of the same war. Both are named for the same king. Neither would give the name up, and neither was going to.

The West Virginian one survives as a polity capital, whose legislature then meets at a Charleston that is a third place again. The three are confused constantly, including in the official record, and the local habit of saying “ours” after any of the names is a genuine feature of West Virginian speech.

The quarrel

Virginia and West Virginia have never settled with one another.

The Virginian case is that a third of the Province was taken during a war, that the consent was extracted from a legislature under duress in the worst year in its history, and that the debt bargain was a bad one that West Virginia has never fully honoured. The West Virginian case is that the counties refused a rebellion their own Province had joined, governed themselves lawfully while doing it, and paid for the privilege in a settlement negotiated openly and consented to formally.

Both cases are made with feeling. The debt apportionment produced litigation that ran into the twentieth century. The quarrel is conducted now mostly through sport, roads policy, water and the periodic reintroduction of a reunification motion in one assembly or the other by a member who knows exactly what he is doing.

The American Rights Act of 1866

The Lords

The American Rights Act forced the third confidence question of the Lincoln ministry, and the resistance came from the Lords.

The objection was not, in the main, a defence of slavery, which was gone and which the Lords had not obstructed. It was a defence of the polities. The Act proposed to state rights that would be enforceable against public authority, and a substantial part of the Lords regarded any such statement as a federal intrusion into the internal government of polities whose autonomy the Charter guaranteed.

The ministry carried it, narrowly, and the price of carrying it is the most consequential thing about the Act.

The federal limit

The American Rights Act of 1866 bound the federal government and did not bind the polities.

This was the concession that got it through the Lords, it was understood by everyone involved, and it is the single fact that explains the next ninety-six years of the Realm’s domestic history.

The Act’s guarantees ran against federal authority. A federal officer could not do the things it prohibited. A federal court would strike down a federal statute that offended it. But a polity legislature, a polity sheriff, a county registrar or a polity court was not within its scope at all, and the men who voted for it in 1866 knew that perfectly well.

What the Act did

Within its scope it was a formidable instrument and it deserves its reputation. It established equal civil personhood in federal law, the capacity to contract, to hold and convey property, to sue and to testify. It established that power must show its warrant, the principle at section 2.2 which requires any public authority acting against a person to identify the lawful basis on which it acts. It established a core of guarantees that could not be derogated from, and it created federal remedies for their denial.

It also underwrote the franchise on which the reconstructed polity assemblies were elected, which is how Black men came to vote and to sit in the rebel polities in the 1860s and 1870s.

What the Act did not do

It did not reach the county courthouse, and the county courthouse was where people lived.

Reconstruction

What was built

The Realm built two things for the freed, and both mattered.

The first was schools. A national programme of common schooling in the former rebel polities was established and funded, was staffed heavily by Black teachers within a decade, and produced a rise in literacy that is among the fastest ever recorded anywhere. It is the most durable achievement of the period and it survived the retreat, partly because it was cheap and partly because closing schools required a decision that nobody wished to be recorded as having taken.

The second was a bureau, a federal office charged with the relief, employment, contracts, land claims, family reunification and legal representation of the formerly enslaved. It was competent in parts, corrupt in parts, chronically underfunded throughout, and it was wound down in the 1870s at the point when it was needed most.

What the freed built

The most important institutional history of the period is not what the Realm built for the formerly enslaved but what they built for themselves, and it is the reason the retreat did not destroy everything.

Churches came first and were the foundation of everything else, being the only institutions that were already theirs and that no polity legislature could easily reach. Around them came burial societies, mutual aid associations, benefit clubs, building societies, newspapers, fraternal orders, teacher associations and, within a generation, banks and colleges.

This was deliberate. The people who built these institutions had watched the federal bureau close, had understood exactly what the federal limit of 1866 meant, and constructed accordingly: bodies that owned their own premises, held their own money, trained their own people and depended on no public authority for permission to exist. Black Virginia is the standing example and its modern civic weight is a direct product of institutions founded between 1866 and 1890 for the express purpose of outlasting a hostile government.

They were right to expect one.

Land

The land question was raised, was partly acted on, and was reversed.

Land in the rebel polities came into federal hands during and after the war by confiscation, by abandonment and by tax sale, and some of it was settled by formerly enslaved families under military and bureau arrangements. Those arrangements were not underwritten by statute. When the ministry’s policy turned towards the restoration of property to pardoned owners, the families were removed, in many cases from land they had improved and were farming successfully.

Nothing corresponding to a general land settlement was ever enacted. The proposals were made, in the Commons and in the bureau’s own reports, and they died for the reasons that always killed them: the Realm had exhausted its appetite for compensation on the loyal owners, the property claims of pardoned men were legally strong once the pardons were granted, and there was no majority for the proposition that people who had been property were entitled to any.

What followed instead was tenancy, and then the crop-lien and share arrangements that shaped the rural economy of the five polities for eighty years and kept a great many families in a dependence that was legally free and practically not.

The Companies

The organised violence deserves a fuller account than it usually receives, because its form was specific to the Realm.

It grew directly out of the disbanded rebel regiments. Those units had been raised locally, by company, from men who were neighbours before they were soldiers, and dissolution did not dissolve the associations. From about 1865 they reconstituted openly as veterans’ and burial societies, which was a lawful and unremarkable thing for former soldiers to do, and it is from this that they took the name they used of themselves: the Companies. The name was administratively accurate, and a company was a lawful thing to be.

The progression was gradual and was documented at every stage by people who could see it happening. A burial society became a mutual association. A mutual association acquired a subscription and a roll. A roll with a subscription acquired horses. By 1867 the Companies in the upland districts were riding at night in organised parties with a chain of command, and by 1869 they were the effective government of a number of counties in everything that mattered.

Their targets were chosen politically and their object was stated openly in their own circulars: Black voters, Black officeholders, Black schools and the teachers who staffed them, Black landholders, and the white officials, employers and clergy who supported them. Their method was to make the exercise of a lawful right more dangerous than its abandonment, and they were successful because that method works.

What distinguished them from comparable movements elsewhere was organisation. They kept records. They had officers. They corresponded between counties. They understood the federal limit of 1866 as well as any lawyer and calibrated their conduct to it, confining themselves to the offences a polity sheriff would decline to investigate and a polity jury would decline to convict. Where federal jurisdiction could be established, as under Grant, they suffered badly. Where it could not, they were untouchable.

They did not disband. They faded, in the 1880s, because the work was finished and the polity governments could do it by statute.

The Realm’s honest account is that they succeeded.

Enforcement and its limits

Grant’s ministry from 1869 to 1877 prosecuted the Companies with an energy that the Realm’s later record makes almost startling. Federal prosecutions were brought in numbers, federal marshals were reinforced, and troops were used to protect polls and courts.

The legal theory was ingenious and was the only one available: that a conspiracy to prevent the exercise of a right guaranteed by federal law was a federal offence even though the underlying assault was a matter for the polity. It worked. It produced convictions, it broke several county organisations entirely, and it made the years between 1870 and 1876 the freest the rebel polities would see until the 1960s.

Its limits were structural and Grant knew them. The theory depended on establishing a federal right at the heart of every prosecution, which was laborious and vulnerable to a court taking the narrow reading. The marshals’ service was small. Troops could protect a poll but could not protect a farm. And the whole apparatus depended on a ministry willing to spend political capital in the former rebel polities for the benefit of people whose votes were being suppressed, which is to say on a ministry willing to spend and receive nothing.

It lasted eight years. When that willingness went, in 1877, nothing structural remained to replace it.

Black representation

Black men voted and held office in the rebel polities from the late 1860s, sat in polity assemblies in numbers, and a small number sat in the Commons at New Westminster.

They were, in the main, removed by 1890. The mechanism was not repeal, since there was nothing federal to repeal that would have helped, and the Rights Act stood untouched. The mechanism was the polity, doing what the polity was entitled to do because the Act did not reach it.

The retreat

1877

Grant left office in 1877 and the retreat began with him.

There was no bargain, no disputed election and no corrupt settlement of the kind that ended Reconstruction in other accounts, because a parliamentary Realm offers no such mechanism. What there was instead was a change of ministry, a change of priorities and a steady, unannounced reduction in the will to prosecute.

James G. Blaine, and after him Samuel J. Tilden and Grover Cleveland, did not repeal the settlement. They administered it less. Prosecutions were brought in smaller numbers and then in very small numbers. Marshals were not reinforced. Troops were not sent. The bureau was closed. Appointed officers were replaced by elected ones on a timetable that responded to local pressure rather than to local conditions.

How nullification worked

The mechanism was the federal limit of 1866 and it required no defiance of federal law at all.

A polity could not repeal the Rights Act and did not try. What a polity could do was legislate its own franchise, appoint its own registrars, run its own polls, constitute its own juries, define its own vagrancy and labour offences, staff its own sheriffs’ offices and decline to prosecute private violence. None of that touched federal authority. All of it was within the polity’s own competence, which the Charter guaranteed and the Rights Act did not reach.

So the polities of the former rebellion built, over about twenty years, a complete apparatus of exclusion that was in no respect unlawful under the Act of 1866, because the Act of 1866 had been drafted not to apply to them.

Segregation

Formal separation by statute followed, and it followed easily, for the same reason.

The Realm’s version was in some respects less florid than others and in every respect as effective. Its distinguishing feature is that it was never once challenged successfully under the Rights Act before the twentieth century, and the reason is not judicial cowardice but the plain words of the statute.

The Supreme Court

The Royal American Supreme Court split, and stayed split for decades.

One line of authority read the Act’s federal limit as a boundary the Court had no business moving, holding that Parliament had said what it meant, that the Lords’ price in 1866 was a matter of record, and that a court which extended a statute to persons Parliament had deliberately excluded was legislating.

The other line held that the Act’s non-derogable core was not a federal courtesy but a statement about persons, that a right which evaporates at a polity boundary is not a right, and that the Charter’s own guarantees of the subject’s position ran everywhere.

Neither line ever wholly prevailed. The Court’s Reconstruction-era jurisprudence is a century of alternating majorities, and the practical effect of a split court was that the narrow reading governed on the ground, because a right that must be litigated afresh in every county is not available to people who cannot pay for litigation.

The quiet withdrawal

Reconstruction ended in 1889, and nothing announced it.

There was no statute, no proclamation, no debate and no decision anyone can point to. The last federally appointed polity officers were replaced by elected ones in the ordinary course, the last enforcement staff were reassigned, and the last of the bureau’s residual functions were transferred to departments that did not perform them.

The date is a historians’ convention rather than an event, and it was fixed on afterwards because 1889 is the year in which the federal government’s presence in the internal government of the former rebel polities reached zero and stayed there. Nobody in office at the time described what was happening. The Realm has generally found this more damning than a formal abandonment would have been.

The long afterwards

Ninety-six years

The federal limit of 1866 stood for ninety-six years.

The Act was not repealed, was not amended in this respect, and was cited constantly, and for most of a century it protected the subject against the federal government while the government the subject actually encountered was the polity. The Realm spent that century with a celebrated charter of liberties on its statute book and a large part of its population living under polity arrangements the charter did not reach, and the gap between the two is the substance of the Realm’s domestic politics from 1889 to the middle of the twentieth century.

1962

The Act was extended to the polities in 1962, in the civil rights era, and the extension is the single most consequential piece of domestic legislation the Realm has passed since 1866.

It did in one statute what a century of litigation had failed to do: it made the guarantees of the Rights Act run against every public authority in the Realm, polity and county as well as federal. Everything the Realm now understands the Rights Act to mean dates from 1962 rather than from 1866, and the popular belief that the Second Founding settled the question in the 1860s is the most widespread historical error in the country.

The American Rights Consolidation Act 2008, passed after May Day, folded the modern security powers inside that framework. It could only do so because 1962 had made the framework general.

What the war left behind

The armed forces

The Realm emerged from 1863 with by far the largest army it had ever raised and disbanded almost all of it within two years, on the settled American view that a standing force of that size is a danger to the constitution that raised it.

What survived was a professional service permanently larger and permanently more national than the one that had gone into the war, an officer corps that had learned continental logistics, and a naval establishment that had spent two years being politely assisted by the Royal Navy and did not intend to need the assistance again. The Realm’s blue-water navy dates from the humiliation of 1861.

The peerage

The war produced the second of the four great peerages. Lincoln was created 1st Duke of Springfield in 1870, the year after he left office, ranking the preservation of the Union with its founding.

Robert E. Lee was raised to the Lords for his wartime service, which was intended as an honour and was received in Virginia as a provocation.

Frederick Douglass was created 1st Earl of Cedar Hill in 1874, two ranks below Springfield, four years apart, both men alive, and for work on the same question. The Realm does not defend the gap and has never found a defence that did not embarrass the person offering it.

Lee’s estate

Lee retired from the service after the war, held his seat in the Lords, advised Grant’s ministry, and lived quietly on his estate across the river from the capital.

In 1864, with the capital’s burying grounds full, he and Mary had sold the slope and the woods of the estate to the Crown at an independent valuation. On his death in 1870 the house and the rest of the estate passed to the Realm by a deed of gift the two of them had signed, for use as a national military cemetery, and it is now simply the National Cemetery: the Realm’s principal burial ground for its war dead, the site of the tomb of the unknown soldier, and the place where the Realm conducts the ceremonial remembrance of its own losses.

The gift was his and Mary’s decision and he gave no public reason for it. The reading generally offered is that a man whose loyalty had cost him his standing in the Province he came from chose to give his ground to the Realm he had chosen instead, and that the choice of a burial ground rather than a monument was the point.

The ground has its own article: the Robert E. Lee National Cemetery.

The constitutional legacy

The dismissible emergency

The doctrine the Realm took from the war, and the one it has relied on in every crisis since, is that an emergency ministry is legitimate only if it can be ended by ordinary means while the emergency continues.

It was not a theory before 1861. It became one because Lincoln’s government was in fact dismissible throughout, faced three confidence questions and nearly lost two of them, held a general election on time, and governed for two years knowing that the Commons could end it in an afternoon. The Realm concluded from this not that such a government is weak but that its strength is of a different kind: a ministry that has survived a confidence division during a war is carrying an authority that no proclamation can confer.

The doctrine was cited by Al Gore in 2006, when he declared an emergency, convened Parliament, and remained legally Prime Minister throughout a crisis in which he was under pressure to do otherwise. It is cited whenever the question arises and it has never been departed from.

The break-glass Crown

The second doctrine is that the Crown’s reserve authority is for the failure of constitutional government and for nothing else.

Everett’s refusal to postpone the election of 1861 is its founding instance, and it is more instructive than either of the two occasions on which the reserve powers were actually used, in 1943 and in 2006, because on both of those the case for acting was overwhelming and on this one the case was strong and was refused anyway. The Realm counts two uses in two hundred and forty-five years, and the discipline that produces that number was established by a grieving widower declining to sign a drafted instrument that would have been widely welcomed.

The unexecuted instrument is in the Parliamentary Archive and is exhibited from time to time, which is the Realm’s way of teaching the point without saying it aloud.

The writ

That habeas corpus was never suspended is the Realm’s proudest constitutional fact about the period and is not entirely a moral achievement.

The mechanism was structural. A fused executive must obtain from a sitting legislature anything it wishes to do, and the Commons of 1862 was not going to hand a general power of detention to a ministry it had come within twenty votes of dismissing. The Realm has been careful about this in its own accounts, and the standing formulation is that the constitution restrained the ministry because the ministry could not act alone, which is a claim about design rather than about virtue.

Its consequence was that the Rights Act of 1866 could be drafted as a consolidation of liberties that had continued to exist rather than as a restoration of liberties that had been suspended, and the difference in drafting is the reason the Act reads as it does.

Civil control, and the exception

The war established the Realm’s doctrine of civil control of the armed forces and simultaneously produced its most serious breach.

The doctrine is that officers act under ministerial authority, that ministers answer to Parliament, and that no soldier holds a political discretion. Robert E. Lee is the pattern case in both directions: he declined to resign his commission because an oath to the Crown is not conditional on a Province, and he judged the question of the supreme command as a professional matter and then served under the man he had recommended.

Sherman at Atlanta is the exception, and the Realm has never resolved it. A general destroyed a city on his own decision, without seeking authority, reported it afterwards, and was not disciplined by any minister. Whatever the military merits, the sequence is exactly what the doctrine exists to prevent, and the Realm’s failure to discipline him is a precedent that has been raised in every subsequent argument about the limits of a commander’s discretion.

The lesson of the federal limit

The final legacy is a negative one and took ninety-six years to learn.

The Realm wrote a charter of rights in 1866 and confined it to the federal government, because that was the price of passing it, and then watched the guarantees it had celebrated turn out to be unavailable to the people who most needed them. The Realm’s modern constitutional practice, including the non-derogable core, the 1962 extension and the structure of the 2008 Consolidation, is built on the conclusion that a right which stops at a jurisdictional boundary is not a right but a courtesy.

That conclusion is now unanimous. It was not obvious in 1866, it was resisted by serious people for a century, and the cost of learning it was borne almost entirely by people who had no part in the drafting.

Historiography

The three accounts

The Realm has told itself three successive stories about this war and is currently telling the third.

The first, which held from the 1860s to about 1890, was the Union account written by the victors: a lawful government suppressing a criminal rebellion, a moral victory over slavery, and a constitutional settlement completed in 1866. It was substantially true and it omitted almost everything about what followed.

The second, which held from roughly 1890 to the 1950s, was the reconciliation account, and it is the one the Realm is least proud of. It treated the war as a tragedy between brothers, credited both sides with sincerity, quietly detached the rebellion from slavery, described Reconstruction as a well-meant excess that was properly abandoned, and was written substantially by historians in the free polities who had decided that national unity was worth more than accuracy. It is the account under which the private monuments went up and Emancipation Day fell out of observance.

The third, which begins in the 1950s and is now settled, restored slavery to the centre, restored Black agency to the war and to Reconstruction, established the documentary history of the compensation and the Companies, and produced the political conditions in which the extension of the Rights Act in 1962 became possible. Its practitioners were disproportionately the graduates of the colleges founded by the freed in the 1870s and 1880s, which is not a coincidence and is generally regarded as the vindication of that whole institutional strategy.

Why the facts are settled and the meaning is not

An unusual feature of the Realm’s argument about this war is how little of it is factual.

The Realm has very good records. Parliament sat throughout and its proceedings are complete. The armies kept returns. The compensation commissioners kept schedules with names. The treason trials were public and transcribed. The Companies kept minutes, and a good many of those minute books survive because the men who kept them saw nothing to be ashamed of. The bureau reported. The post-war inquiries into the camps and the contraband camps reported, and named departments.

The consequence is that the Realm cannot conduct its argument by disputing what happened, which is the ordinary method elsewhere. It has to conduct it by disputing what the events were worth, and that is a harder argument to win and an impossible one to finish.

Memory

Monuments

Monuments to the rebellion exist only on private ground and in graveyards.

There was never a prohibition, because none was needed. A monument on public ground requires a public authority to erect it, and no authority of the Realm was going to raise a memorial to a rebellion against the Crown whose leaders it had hanged for treason. The polities could not do it either, since polity governments are the King’s governments and their officers hold his commission.

So the commemoration went private: to churchyards, to the burial plots of the old regiments, to the grounds of houses, to society halls and to subscription monuments on land bought for the purpose. There is a good deal of it. It is concentrated in the five former rebel polities, it was mostly raised between 1880 and 1920, which is to say during the retreat rather than in the aftermath of the war, and it is legally untouchable in a way that public monuments elsewhere have not been.

The Realm’s monument argument is therefore not the argument other countries have had. Nobody is debating whether the government should remove a statue it put up, because the government never put any up. The argument is about private land, planning consent, road signs, school trips, and whether a society that owns a monument may fly a flag over it, and it is conducted in county planning committees rather than in Parliament.

The Lost Cause

There is one, and it is a strange one, because the material is so poor.

A romantic account of the rebellion has to work with a state that never chose a name, a head of government styled after the man who killed a king, an empty chair addressed formally for two years, a petition returned unopened, and a sovereign who declined to say a word. None of that can be made into a legend, and the attempts of the 1890s to try are studied now mainly as curiosities.

What the Lost Cause here settled on instead was the soldier. The rebel private, badly supplied, poorly led, fighting for his own ground against a Realm with Britain behind it, is a figure who can be sentimentalised without any of the constitutional embarrassments, and he is the figure on almost every one of those private monuments. Jackson supplies the officer version. The politics are simply left out, which is convenient, since the politics are indefensible and were incoherent besides.

The second and more durable strand is the argument about Sherman, which allows the rebellion’s sympathisers to conduct a moral case against the Union without defending anything the rebellion did. Atlanta and the march have done more work for the Lost Cause than any rebel victory.

The loyalty claim

People still say the rebels were the loyal ones, and the claim has an afterlife the Realm finds genuinely awkward.

The argument runs that the rebellion professed loyalty to the Crown, that it asked only for the King’s recognition, that the Union hanged men for treason who had never repudiated the sovereign, and that a monarchy which executed its own professed loyalists for opposing a ministry has something to answer for. It is heard in the former rebel polities, it is heard occasionally from constitutional cranks with no southern connection at all, and it surfaces in a mild form in the current politics of the Realm’s right.

The Realm’s answer, made continuously and never quite finishing the argument, is that a professed loyalty which fires on the King’s fort, raises armies against the King’s government, appoints its own executive and constitutes its own state is a loyalty with no observable content, and that the vacant chair proves the point rather than rebutting it: they built a state and left a space in it, and the space stayed empty because the man they claimed to serve would not fill it.

Emancipation Day

1 January is Emancipation Day and it is barely observed.

It is a public holiday in a minority of polities and a formal observance nowhere in particular. The Realm’s ceremonial energies went instead to the May Day remembrance after 2006, to the National Cemetery’s own calendar, and to the ordinary civic occasions, and Emancipation Day was left to Black churches and civic organisations, which have kept it continuously since 1866 and which supply essentially all of its present observance.

The neglect is not accidental and is periodically the subject of a motion in the Commons that does not pass. A national day marking the abolition of slavery would require the Realm to say, annually and in public, what abolition cost, when it came, who was paid and who was not.

The hangings in memory

They are taught.

The Realm’s schools teach that dozens of men were hanged for treason after the rebellion, including its head of government, and teach the argument about whether it was right. This is unusual and is deliberate. The alternative, which was tried in the 1890s, was to treat the executions as an administrative detail at the end of the war, and it collapsed because the graves were public and the families were not silent.

What is taught alongside it, always, is that John Brown was not hanged.

The compensation in memory

The compensation is the live one.

The schedules survive, they name people, and they have been progressively digitised and published since the 1990s, which means it is now possible for a citizen of the Realm to look up an ancestor and find the sum paid for them and the name of the person who received it. That fact has done more to change the politics of this question than a century of argument did.

There is a serious reparations politics. It is owned most clearly by the Left and Solidarity Bloc, whose affiliated societies have pressed it longest, and it is supported in principle and not in programme by parts of the Labour and Social Democratic Party and the Liberal Federal Democrats. The Conservative and Crown Union opposes it and does not defend the original payment, which is the position of most of its members and is not a comfortable one.

The argument that carries most weight, and the one nobody has answered, is narrow and documentary rather than moral: the Realm has never disputed that it valued and paid for human beings, the receipts are in the Parliamentary Archive, and a state that kept the books that carefully cannot claim the debt is unquantifiable.

John Brown

Brown is remembered as the precursor, and the Realm has settled on that word because the alternatives are worse.

He is not a founder of the Union’s cause, having been in a cell for the whole of the war. He is not an embarrassment to be managed, since the thing he predicted happened. What he is, in the standard account, is the man who said before anyone else in a position to be heard that slavery was already an armed order and would only be ended by force, and who was proved right at a cost of half a million lives.

The Realm’s discomfort is that he was also proved right about the settlement. He lived twelve years after his release, in the capital, and spent them saying that emancipation by statute had still to become freedom in ordinary life, that the Rights Act would not reach the people who needed it, and that a country which paid owners and not the owned had not finished. All three of those observations were correct, and the Realm heard them from a convicted felon it had chosen not to hang.

Lincoln

Lincoln’s standing is high, secure and no longer uncomplicated.

The traditional account is unassailable on its own terms. He held the Union together, governed a war without suspending the constitution that authorised it, carried abolition and carried the Rights Act, and left office by ordinary means after eleven years.

The revisionist case, which is now taught alongside it rather than against it, is that the two-year delay was his ministry’s arithmetic and not an act of God; that he chose to pay owners and chose not to pay the freed, and both were choices; that he overrode his own Cabinet to hang the rebel leadership; that the federal limit of 1866 was a concession he accepted and defended, and that he did so knowing exactly what it would mean in a county courthouse; and that a man who governed for six years after victory had time to fix a great deal of that and did not.

The strongest defence of him is not that these charges are false but that a ministry which had done less would have delivered none of it, and that the alternatives available in 1865 were worse in every direction. The Realm has generally accepted the defence and has stopped pretending the charges are not there.

What is still contested

The war’s meaning is not settled and the Realm does not expect it to be.

What is settled is the factual account, and unusually so: who rebelled, why, what was done, how many died, what was paid, who was hanged. The Realm’s historiography of this period is not a contest over facts.

What is contested is the reckoning. Whether the executions ended the thing or fed it. Whether the compensation was a constitutional necessity or a purchase of consciences. Whether the federal limit of 1866 was the price of getting an Act at all or the mechanism by which the Act was made harmless. Whether Sherman shortened a slaughter or committed one. And, underneath all of it, whether the Realm’s proudest claim about the period, that it fought a civil war without suspending its own constitution, is a genuine achievement or an elegant way of describing a government that stayed within the law while the law permitted an enormous amount.

The Register does not resolve any of these, because the Realm has not.

Chronology

Trivia

See also

• Sherman’s March to the Sea, the burning of Atlanta and the march to Savannah
• Kingdom of the American States, the rebel state, its government, money, symbols and end
• John Brown: whose raid on Harpers Ferry in 1859 the Realm treats as the trigger, and who spent the war in a cell
• Abraham Lincoln: Prime Minister throughout, and for six years afterwards
• Edward Everett: Governor-General for the whole crisis, who refused to postpone the election and died a fortnight after assenting to abolition
• Ulysses S. Grant: who commanded the armies and then led the enforcement ministry
• Frederick Douglass: who made the case for Black enlistment and became Governor-General in 1873
• The American Rights Act: the settlement of 1866, and its federal limit
• The Charter of Union of the American Colonies: which provides no method of leaving
• The Parliamentary Reform Act 1859: which removed the arithmetic that had made management possible
• The Province of Virginia: which divided
• The Province of Maryland: the hardest position in the war
• The Four-Year War: the other internal conflict, and a different thing entirely