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This marvelous picture was taken at this summer's Pippen Reunion at Dixieland. Cousin Takara Jenkins seems to be most curious about her Cousin Sophia Bird, my granddaughter.
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Vatican reveals Secret Archives
"Another formal letter in the archive highlights the papacy’s political role. In 1863 Jefferson Davis, the president of the Confederate States, wrote to Pope Pius IX claiming that the civil war raging across America was entirely due to “Northern aggression”.
“We desire no evil to our enemies, nor do we covet any of their possessions; but are only struggling to the end that they shall cease to devastate our land and inflict useless and cruel slaughter upon our people.
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13,000 words
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"You may share it with anyone else so long as no part of it gets changed."
--Ken Bachand
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The American Revolution and the Secession of Southern States
By Kenneth Bachand
The two events that did more than any other to shape the course of American history are the struggle for American independence from Great Britain that historians call the Revolutionary War and the struggle for Southern independence that historians call the Civil War. So lets look at some similarities and differences between them.
When in 1776 thirteen British colonies in America set forth on a quest for independence, it was looked upon by the British government as a rebellion, and those who took part in it were called rebels and traitors. For eight years the British attempted to crush the rebellion, and had they been able to do so, those who took part in it would have been punished for treason.
In 1861, seventy-eight years after the signing of the Treaty of Paris in which His Britanic Majesty recognized the thirteen "free, sovereign, and independent States,” four of those now sovereign states, along with several others that had subsequently been created, also declared their independence. And just as the British had done in 1776, the United States government called it a rebellion, and those who took part in it were called rebels and traitors.
Because the united colonies were successful in their quest, those who fought for independence are now called patriots. But because the Southern states were not successful in their quest, those who fought for independence have been called traitors. And though these two historical events are said to be parallels with opposite outcomes, there is a significant difference that most historians either do not see or choose not to explain.
In the first case, the British government existed before the thirteen American colonies, and those colonies were established by grants and charters from that government. In the second case, the thirteen independent and sovereign states existed before the United States government, and that government was created by a constitution drafted and ratified by conventions of the people in those states. And so, in the first case the British government was the superior and the American colonies the inferior, while in the second case the states and the citizens thereof were the superior and the United States government the inferior. This is confirmed by the 9th and 10th Amendments to the Constitution.
Article VII of the Constitution says: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” (Note the last phrase which by exclusion makes it clear that any states not ratifying the Constitution would not become a part of the new federation.)
Because it had been established that the Constitution of the United States could not take effect until it had been ratified by no fewer than nine states, had that number not ratified the Constitution, there would have been no federal government and thus no United States of America.
As fortune would have it, eleven states ratified the Constitution; the seats of Congress were filled; a president and vice-president were elected; and the government began to function.
It is important to clarify here that as previously noted regarding the status of states not ratifying the Constitution, as Rhode Island and North Carolina had not yet ratified the Constitution, they could not take part in the elections of 1788 and played no further role in the establishment of the government at that time. And until they did ratify the Constitution, they remained separate and independent sovereign states and could have remained so indefinitely. Note also that Vermont, which was not one of the original thirteen states but which had played a notable part in the struggle for independence, did not unite with the other states in the formation of the government under the Articles of Confederation and remained sovereign and independent until March of 1791—three years after the Constitution had been ratified.
Just as when in 1776 the thirteen American colonies wished only to separate in peace and pursue their own destiny, in 1861 the seceded Southern states wished only to “go in peace” and be “let alone.” And as in 1861 neither the Constitution nor any law of the United States prohibited the states that had voluntarily entered into the compact of union from separating from that compact, the secession of Southern states was not a rebellion, and those who fought for independence from the United States were not traitors. (Had there been a United States Military Academy at West Point in 1776 and Benedict Arnold had graduated from that institution, his portrait would not be hanging in the gallery there as are the portraits of Robert E. Lee and “Stonewall” Jackson. And had Confederate Lieutenant General Joseph Wheeler been a traitor, he certainly would not have been given command of United States cavalry forces in Cuba during the war between the United States and Spain. The same might be said of Lt. Gen. Simon Bolivar Buckner, Jr., the highest-rankking U.S. officer to be killed during WW-II, for he was the son of Confederate general Simon Bolivar Buckner..
Random House Webster’s Unabridged Dictionary defines rebellion as 1. open, organized, and armed resistance to ones government or ruler or 2. resistance to or defiance of any authority, control, or tradition.
If you begin with the second definition and follow with the first, you will have the sequence that characterizes the struggle for American independence from Great Britain. But the definition cannot fit the struggle for Southern independence from the United States, for those states could not have been in “open, organized, and armed resistance” to the government of a nation of which they were no longer a part. To refute this, one must prove the secession of Southern states to have been either un-Constitutional or illegal.
Remember these differences:
The American colonies came into existence by virtue of grants or charters from theBritish government while the United States government came into existence by virtue of a constitution drafted and ratified by conventions in nine of thirteen sovereign states. And there is ample evidence that in their doing so, they had no intention of surrendering their sovereignty but rather of creating a government of specifically limited powers for the purpose of making it possible to cooperate on such matters and in such circumstances as affected their common interest.
Now note these further differences between the American colonies that declared their independence from Great Britain in 1776 and the Southern states that declared their independence from the United States in 1860-61:
The American colonies, having no warrant for separation under British law, claimed their right to independence on the philosophy of Thomas Jefferson and John Locke as expressed in the Declaration of Independence—viz., “…the laws of nature and of nature’s God” and “…whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” The seceding Southern states, however, claimed their right to independence both on the arguments set forth in the Declaration of Independence and also on the fact that they had voluntarily acceded to a compact of union with other states from which they could voluntarily secede as expressed by James Madison when he wrote: "a breach of any one article by any one party, leaves all other parties at liberty to consider the whole convention as dissolved.”
(Source: The Madison Papers (Philadelphia: 1840), 895, in H. Newcomb Morse, "The Foundations and Meaning of Secession," Stetson University College of Law, Stetson Law Review, Vol. XV, No. 2, 1986), 426.)
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Note: Stetson University, located in DeLand, Florida, is my alma mater. It was founded in 1883 and is Florida's first university. Stetson's College of Law, located in St. Petersburg, was founded in 1900 and is Florida's oldest law school.
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It is important to note that whereas the Declaration of Independence claims the right of any people “to alter or to abolish it [their existing government], and to institute new Government…,” the Southern states had no desire to alter or change the government of the United States but simply to form one of their own, and in doing so, “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Surprising as it may seem to some, in 1847 when he was a Congressional Representative from Illinois, Abraham Lincoln made a compelling case for secession in a speech before the House of Representatives in reference to the war with Mexico and the declaration of Independence of the Republic of Texas:
"Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. This is a most valuable, --a most sacred right--a right, which we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much of the territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority, intermingled with , or near about them, who may oppose their movement. Such minority, was precisely the case, of the Tories of our own revolution." (Congressional Record, Jan. 12, 1847)
Ironically, and in contradiction to his previous statement, just 13 years later Lincoln claimed that the Southern States did NOT have the right to secede and that somehow the government came before the states formed the union and its government by ratifying the Constitution. He argued in his 1861 Inaugural address that "Perpetuity is implied, if not expressed, in the fundamental law of all national governments." This is hardly consistent with his argument in 1847.
(It should also be noted that the Framers of the Constitution specifically avoided the use of the words "national" and "perpetual" and in every instance struck them from proposed documents. James Madison made it clear that the people, their liberties, and their "safety and happiness" were more important than any form of government when he said, "The safety and happiness of society are the objects at which all political institutions must be sacrificed." (It seems to be quite a stretch of the purpose of preserving the “safety and happiness of society” that the political institution known as the Confederate States of America had to be sacrificed.)
It is important to note in this context that no state would have ratified the Constitution if it had contained any language declaring the Union to be indivisible. Moreover, three states—Virginia, New York, and Rhode Island—explicitly reserved the right to sever the bonds of union as follows: Virginia—"We the delegates of the people of Virginia, duly elected in pursuance of a recommendation of the General Assembly and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon, do in the name and behalf of the People of Virginia declare and make known that the powers granted under the Constitution, being derived from the People of the United States, may be resumed by them whensoever the same shall be perverted to their injury and oppression, and that every power not granted thereby remains with them and at their will"; New York--"That all power is naturally vested in, and consequently derived from the people"; and Rhode Island—“that the powers of government may be reassumed by the people whensover it shall become necessary to their happiness." (From Part 2 of “The Right of a State to Secede from the Union” in Constitutional History of Secession by John Remington Graham)
Also in the reference just cited, Graham points out that in the Virginia Convention of 1788, John Marshall asserted: "We are threatened with the loss of our liberties by possible abuse of power, notwithstanding the maxim that those who give power may take it away. It is the people who give power, and can take it back. Who shall restrain them. They are the masters who give it, and of whom their servants hold it."
The fact that none of the other states that ratified the Constitution offered any objection to the right to withdraw from the Union as expressed by Virginia, New York, and Rhode Island (and that their doccumends of ratification wer accepted as written) is strong evidence that all the states viewed the right to withdraw from the compact as a fundamental right.
Southerners during the secession debate knew and understood this argument. Senator Judah P. Benjamin of Louisiana, a brilliant legal mind who was later Attorney General, Secretary of War and Secretary of State of the Confederacy, in his farewell speech to the United States Senate on February 5, 1861, said: “The rights of Louisiana as a sovereign state are those of Virginia; no more, no less. Let those who deny her right to resume delegated powers, successfully refute the claim of Virginia to the same right, in spite of her expressed reservation made and notified to her sister states when she consented to enter the Union.” (Judah P. Benjamin, "Farewell Address to the U. S. Senate," delivered February 5, 1861, in Edwin Anderson Alderman, and Joel Chandler Harris, eds., Library of Southern Literature (Atlanta: The Martin and Hoyt Company, 1907), Volume I, 318.)
And as some argue that the seceding Southern states acted with reckless abandon, it should be noted that they held that any such separation was not to be undertaken for trivial or insignificant reasons as was expressed by James Madison in a letter to Nicholas P. Trist on February 15, 1830:
“Applying a like view of the subject to the case of the U. S. it results, that the compact being among individuals as embodied into States, no State can at pleasure release itself therefrom, and set up for itself. The compact can only be dissolved by the consent of the other parties, or by usurpations or abuses of power justly having that effect."
President James Buchanan said in his inaugural address that the founding fathers rejected the idea of allowing the federal government to use force to compel the obedience of a state:
“The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. But no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not ‘necessary and proper for carrying into execution’ any one of these powers.
“So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution. It is clear from the proceedings of that body that on the 31st May, 1787, the clause ‘authorizing an exertion of the force of the whole against a delinquent State’ came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed: ‘The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.’
“Upon his motion the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: ‘Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress,’ evidently meaning the then existing Congress of the old Confederation.
“Without descending to particulars, it may be safely asserted that the power to make war against a State is at variance with the whole spirit and intent of the Constitution.”
American legal giant William Rawle, whose book, A View of the Constitution of the United States, was a standard text at West Point up until the War Between the States (and used by the deligates to the Hartford Convention), said that Article IV:4 does not provide any authority for the federal government to use force against a state that has left the Union:
“Hence, the term guarantee, indicates that the United States are authorized to oppose, and if possible, prevent every state in the Union from relinquishing the republican form of government, and as auxiliary means, they are expressly authorized and required to employ their force on the application of the constituted authorities of each state, "to repress domestic violence." If a faction should attempt to subvert the government of a state for the purpose of destroying its republican form, the paternal power of the Union could thus be called forth to subdue it. Yet it is not to be understood, that its interposition would be justifiable, if the people of a state should determine to retire from the Union, whether they adopted another or retained the same form of government, or if they should, with the express intention of seceding, expunge the representative system from their code, and thereby incapacitate themselves from concurring according to the mode now prescribed, in the choice of certain public officers of the United States. The principle of representation, although certainly the wisest and best, is not essential to the being of a republic, but to continue a member of the Union, it must be preserved, and therefore the guarantee must be so construed. It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed. This right must be considered as an ingredient in the original composition of the general government, which, though not expressed, was mutually understood, and the doctrine heretofore presented to the reader in regard to the indefeasible nature of personal allegiance, is so far qualified in respect to allegiance to the United States. It was observed, that it was competent for a state to make a compact with its citizens, that the reciprocal obligations of protection and allegiance might cease on certain events; and it was further observed, that allegiance would necessarily cease on the dissolution of the society to which it was due.”
(Rawle, William, A View of the Constitution of the United States, 2nd Edition, 1829, pp. 295-304, 305-307)
(Most people think that in 1860 thirteen Southern states were chafeing at the bit to break away from the Union. However, the truth is that it took just ten days short of a year for thirteen states to make this move—six of them deciding to break away only after Lincoln had declared war on the first seven.)
A less drastic but equally important right claimed by virtually all of the founders of the Consttitution was that of nullification as explained by John Remington Graham in the following paragraphs from “The right of a State to Secede from the Union” in his book Constitutional History of Secession:
“Tied to the right of secession was the twin right of nullification, which was a cautious and gradual kind of secession actually understood at the time of the formation of the United States Constitution as an extraordinary mode of redress against unconstitutional acts within or of the Union in a case of unusual magnitude where, due to the passions of the day, or the very nature of the question, normal modes of redress by petition or litigation could not be effective and beneficial. It was a process known to have three distinct stages:
“First, there might be an act of interposition,- i.e., a resolution of formal protest adopted by the legislature of an offended State, promulgating a solemn declaration identifying the offensive acts of the government of the Union or of sister States as unconstitutional and injurious, and concluding with an appropriate demand for redress, lest further measures become necessary;
“Second, if interposition should fail to induce justice, the legislature of the offended State might then issue a summons for the election and assembly of the People in Convention, which could then meet, and, by command of supreme and irresistible authority, adopt an ordinance of nullification, declaring the unconstitutional acts null and void, and authorizing or directing the government of the State to proceed with concrete measures to obstruct any further implementation of the wrongful acts within her territory;
“Third, if the ordinance of nullification should fail to restore proper balance between the Union and the State, the People in Convention could then, by act of sovereign power, as the means of enforcing the nullification, adopt an ordinance of secession, lawfully withdrawing the State from the Union.
“Interposition as a precursor to nullification was well illustrated by the resolutions of the Virginia House of Burgesses on May 30, 1765, denouncing the unconstitutionality of the Stamp Act. Due to the wisdom and eloquence of William Pitt, the crisis passed, and interposition did not mature by stages into secession from the British Empire. Secession occurred only a decade later on another occasion, upon fresh and aggravated wrongs, inducing Rhode Island, Virginia, and other colonies of England in North America to withdraw from the British Empire.
“Interposition was also mentioned by James Madison in the First Congress under the United States Constitution where he said, ‘The state legislatures will jealously and closely watch the operations of this government, and will be able to resist with more effect every assumption of power.’
“The formal use of nullification by the ultimate legal powers of the several States was foreseen in the Virginia Convention of 1788 where George Nicholas noted worry over abuse of the power of Congress [and] then asked, ‘Who is to determine the extent of such powers? I say, the same power which, in all well-regulated communities, determines the extent of legislative powers. If they exceeded these powers, the judiciary will declare it void, or else the people will have the right to declare it void.’”
(Considering the present-day unfettered usurpations of power by the U.S. president and Congress, what Madison and Nicholas foresaw cannot seem anything less than alarmingly prophetic.)
[John Remington Graham has degrees in philosophy and law from the University of Minnesota. A former law professor and experienced trial lawyer, he has devoted much time to the study of British, American, and Canadian constitutional law and history.]
There is no shortage in today’s media of allegations of usurpation and abuse of power at the highest levels of government, but in fact such excesses have been with us almost from the beginning, and some of them (actual or presumed) have led to Constitutional crises that could have resulted in the separation of one state or another from the Union. (Massachusetts, for example, threatened to secede four times—in the early days on the adjustment of state debts, on the Louisiana Purchase by Jefferson, during the War of 1812, and on the annexation of Texas. One chamber of the Massachusetts legislature actually passed a resolution of secession.)
In 1798 during the John Adams administration, the Federalists, sensing their power draining away because of immigration and territorial expansion, put through Congress three laws intended to check the growth of the rising Democratic Party. Because newly naturalized citizens were generally voting for that party, the Naturalization Act increased the waiting time for naturalized citizenship from five to fourteen years. The Alien Act allowed the President, at his discretion, to deport any foreigner without due process of law. The Sedition Act broadly criminalized libel against federal officials, even allowing the fine and imprisonment of two or more people who gathered in political protest. (Under this law Congressman Matthew Lyon of Vermont was imprisoned for writing a letter to a newspaper criticizing a federal judge. He was re-elected to Congress while still in prison.)
Outraged over these abuses of the Constitution, Thomas Jefferson, then vice-president of the United States, and James Madison, recently retired from Congress, evoked the principle of “nullification”—the refusal of a state to enforce a federal law it deems to be un-Constitutional. This resulted in the Kentucky and Virginia Resolutions of November and December of 1798.
For the state of Kentucky, Jefferson wrote: "Resolved, That the several States composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a government for special purposes, delegated to that government certain definite powers, reserving each State to itself the residuary mass of right to their own self-government; and that, whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a State, and is an integral party; that the government created by their compact was not made the exclusive or final judge of the powers delegated to itself, since that would have made its discretion, and not the Constituent, the measure of its powers; but that, as in cases of compact among powers having no common judge each party has an equal right to judge for itself, as well as of infractions as of the mode of redress."
For the state of Virginia, Madison wrote: "Resolved, That the General Assembly doth explicitly and peremptorily declare that it views the powers of the federal government as resulting from a compact to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact, and as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and maintaining within the respective limits the authorities, rights and liberties appertaining to them.”
In a letter to Madison in 1799, Jefferson went further to say that if the abuses of the Constitution did not cease, Kentucky and Virginia should "sever ourselves from that union we so much value, rather than give up the rights of self government which we have reserved, and in which alone we see liberty, safety and happiness.”
The crisis ended with the expiration of the Alien and Sedition Acts, but the principle of nullification remained. Vermont and Massachusetts nullified the Fugitive Slave Law of 1793. At least ten Northern states passed “Personal Liberty” laws that nullified the Fugitive Slave Law of the Compromise of 1850 as well as Article IV of the U.S. Constitution. Two of John Brown’s sons, wanted in Virginia for insurrection and murder, were harbored in Ohio and Iowa, also in violation of Article IV.
Ironically, the New England Federalists, who had stood so firm against the doctrine of nullification in Kentucky and Virginia, were quick to embrace it during the War of 1812. Massachusetts and Connecticut, angered over the federal government’s institution of a draft and an embargo against trade with Great Britain, withdrew their militias. In Vermont there was talk of Secession. In December 1814, deligates from these states along with others from New Hampshire and Rhode Island met in Hartford, Connecticut, to consider what drastic measures they might take to protect their states from the abuses of federal power—including the possibility of seceding from the Union. By selecting a military leader for that eventuality, they took a giant step beyond Jefferson’s earlier suggestion that Kentucky and Virginia might secede from the Union. This meeting has become known as the Hartford Convention. A delegation was sent to present their demands to the federal government at its temporary capital at Philadelphia, but by the time they arrived the war had ended.
The most serious test of the principle of nullification came during the early 1830s over what some refer to as the Tariffs of Abomination. As it is not easily dealt with in a few words, I have included it as an addendum entitled “Tariff Laws and the War Between the States."
The Random House dictionary also defines a civil war as “a war between political factions or regions within the same country.” And so unless the secession of Southern states and the formation of the Confederate States of America can be proven to have been illegal or un-Constitutional, the War Between the States (so named by a resolution of Congress in 1927) cannot rightly be called a civil war even though most historians do so. (Even Robert E. Lee and other Confederates incorrectly referred to it as such.)
During the 1876 Centennial, former Governor Benjamin F. Perry of South Carolina saw an opportunity to drive home to the country the similarity of principles of the event that has become known as the Revolution and the event that has been referred to by many as the “Lost Cause.” “This Centennial glorification of the rebels of ’76,” Perry noted, “cannot fail to teach the Northern mind to look with more leniency on Confederate rebels who only attempted to do in the late civil war what the ancestors of the Northern people did do in the American revolution…It shows a want of sense as well as a want of principle, and a want of truth, to call the rebels of 1776 patriots and heroes and the rebels of 1861 traitors.” (The South During Reconstruction, 1865-1877, E. Merton Coulter, LSU Press, 1947, pp. 389-390)
One of the Southern persuasion might be expected to have such thoughts, but similar sentiments were not uncommon in the North. One example is an editorial that appeared in Horace Greely’s New York Daily Tribune on December 17, 1860, the same day South Carolina’s secession convention began. It read:
“We have repeatedly asked those who dissent from our view of this matter to tell us frankly whether they do or do not assent to Mr. Jefferson's statement in the Declaration of Independence that governments ‘derive their just powers from the consent of the governed; and that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government," &c., &c.’ We do heartily accept this doctrine, believing it intrinsically sound, beneficent, and one that, universally accepted, is calculated to prevent the shedding of seas of human blood. And, if it justified the secession from the British Empire of Three Millions of colonists in 1776, we do not see why it would not justify the secession of Five Millions of Southrons from the Federal Union in 1861. If we are mistaken on this point, why does not some one attempt to show wherein and why? …we could not stand up for coercion, for subjugation, for we do not think it would be just. We hold the right of Self-government sacred, even when invoked in behalf of those who deny it to others... if ever 'seven or eight States' send agents to Washington to say 'We want to get out of the Union,' we shall feel constrained by our devotion to Human Liberty to say, Let Them Go! And we do not see how we could take the other side without coming in direct conflict with those Rights of Man which we hold paramount to all political arrangements, however convenient and advantageous.” (Howard Cecil Perkins, ed., Northern Editorials on Secession, 199-201)
Note: Greely chose the exact words as used in South Carolina's Declaration of Immediate Causes, which were taken from the Declaration of Independence.
And going back nearly half a century, we find the Hartford Convention declaring:
“Whenever it shall appear that these causes are radical and permanent, a separation by equitable arrangement, will be preferable to an alliance by constraint, among nominal friends, but real enemies, inflamed by mutual hatred and jealousy, and inviting by intestine division, contempt and aggression from abroad.” (Journal of the Hartford Convention, as quoted in George M. Curtis, III, and James J. Thompson, Jr., eds., The Southern Essays of Richard M. Weaver, Indianapolis: LibertyPress, 1987), 153)
In his article in the Stetson Law Review, H. Newcomb Morse went on to point out that discussions and legislation proposed by Congress during the period of secession indicate that Congress believed the right of secession existed. One proposed bill was introduced to deal with the disposition of federal property within a seceding state and that state's assumption of its share of the national debt. Another bill would have allowed secession only if approved by two-thirds of the members of both Houses of Congress, the president, and all the states. So those who argue that the deligates from the several states gave no thought to the idea of secession have no basis for their argument, and their claiming such betrays their ignorance.
It is important to note that while a delegation from the seceded states was in Washington to negotiate their states’ share of the national debt as well as payment for any federal property lying within their borders, Lincoln was preparing a fleet to “provision” the federal garrison at Ft. Sumter—this provisioning including arms and ammunition that would have made it possible for the fort to control the entire harbor as well as pose a threat to the city of Charleston. (See addendum 2.)
Morse also notes that thirty-six years earlier, Chief Justice John Marshall, in Gibbons v. Ogden, had said that "limitations of a power furnish a strong argument in favor of the existence of that power….” Morse summed up with: “What would have been the point of the foregoing proposed amendments to the Constitution of the United States prohibiting or limiting the right of secession if under the Constitution the unfettered right of secession did not already exist? Why would Congress have even considered proposed amendments to the Constitution forbidding or restricting the right of secession if any such right was already prohibited, limited or non-existent under the Constitution?” (Morse, op. cit. p. 438)
Taking the issue beyond the war to the Reconstruction period, Morse adds: "the Northern occupational armies were removed from Arkansas, North Carolina, Florida, South Carolina, Mississippi, and Virginia only after those former Confederate States had incorporated in their constitutions a clause surrendering the right to secede." He concludes that by compelling the former Confederate States to surrender their right to secede, the United States government implicitly admitted that those states originally had that right, for they could not surrender a right they did not already have. (Morse, op. cit. p. 433)
The argument most used against the right of a state to secede from the Union is based on the words "We the people" in the preamble to the Constitution. It is claimed that the Constitution is not a compact but rather a national document and that "We the People" means all of the American people in one body and not in their sovereign states. This argument is made in virtually every speech, book, pamphlet, and discussion by every opponent of the right of secession. Daniel Webster used it in his debate with John C. Calhoun in 1833 when he argued that if the Constitution was written as a document for all of the American people in one body, then individual states had no right to withdraw from it.
But Webster’s argument fails when we compare it with the words of Gouverneur Morris of Pennsylvania who chaired the committee on style at the Constitutional Convention in 1787. In reference to the words “We the people,” Morris said, “The Constitution was a compact not between individuals, but between political societies, the people, not of America, but of the United States, each enjoying sovereign power and of course equal rights.” (Gouverneur Morris, Life and Writings, vol. iii., p. 193)
Morris believed in the right of secession and supported the New England states who threatened to do it during the War of 1812. (Bledsoe, Albert Taylor, Is Davis a Traitor; or Was Secession a Constitutional Right Previous to the War of 1861? Pp. 64-65)
In the work just cited, Bledsoe quotes The Madison Papers, referring to some 900 pages of the proceedings of the Constitutional Convention on which are recorded the debate over the method of ratification. Bledsoe points out that nowhere in that vast record is there a discussion of the "people" as meaning the entire American people outside of their states. Instead, the major debate was over whether the Constitution should be ratified by the legislatures of the various states or by the people of each state in special convention. (This is how the Articles of Confederation were ratified and how each state withdrew from it.) They decided that since a later legislature might rescind the ratification of an earlier legislature, it would be a more sound foundation to have the people of each state ratify the Constitution in special conventions called for the purpose of ratification. (Bledsoe, op. cit. pp. 66-73)
The use of the People in Convention in each of the several States, as required by Article VII, is explained by James Madison in the 39th Federalist where he says: "It appears, on the one hand, that the [United States] Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for a special purpose; but on the other, that this assent and ratification is to be given by the people, not as individuals composing the entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, deprived from the supreme authority in each State—the authority of the people themselves."
Answering critics of the proposed constitution in the Virginia ratification Convention of 1788, Madison argued the right of secession by saying: "If we be dissatisfied with the national government, if we choose to renounce it, this is an additional safeguard to our defense." (3 Elliot’s Debates 414-415 (June 14, 1788 as found in “The Right of a State to Secede from the Union,” Part 2, by John Remington Graham)
In that same Virginia Convention, John Marshall added: "We are threatened with the loss of our liberties by possible abuse of power, notwithstanding the maxim that those who give power may take it away. It is the people who give power, and can take it back. Who shall restrain them. They are the masters who give it, and of whom their servants hold it." (Graham, op. cit.)
This is exactly how the Southern states went about declaring their independence—by conventions called for the single purpose of deciding the issue of secession. And as Morse said in the Stetson Law Review, "not one state was remiss in discharging this legal obligation."*
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*Notes on the secession of Southern states:
Morse (as do many historians) was referring to eleven Southern states, excluding Missouri and Kentucky. Governor Claiborne F. Jackson of Missouri declared his state to be independent on August 5, 1861, and the Missouri legislature passed an act of secession on October 31st—neither act being in accord with the “convention” principle—this in all probability due to the fact that that state was already in great turmoil and any convention of the people might have put them in great danger. And though Kentucky’s legislature voted to remain in the Union, on November 20, 1861, a convention of the people denied the legislature’s right to make the decision and voted for secession.
In Virginia, the convention first voted overwhelmingly to remain in the Union. But on April 17, 1861—after Lincoln’s call on April 15th for 75,000 volunteers to make war on the seceded Deep South states—they reversed themselves and voted overwhelmingly in favor of secession. Arkansas, North Carolina, and Tennessee—each of which had also previously voted not to leave the Union—soon followed in like manner to declare their independence.
(Note that each state that seceded after the formation of the Confederate States of America by the initial six Deep South states had to apply for admittance into the new federation and—just as with each of the first thirteen United States—first had to ratify the constitution.)
And as it illustrates both the sentiments of the people as well as the procedure required for the act of secession, I will include here North Carolina’s declaration of secession:
An Ordinance to dissolve the union between the State of North Carolina and the other States united with her, under the compact of government entitled "The Constitution of the United States:
We, the people of the State of North Carolina in convention assembled, do declare and ordain, and it is hereby declared and ordained, That the ordinance adopted by the State of North Carolina in the convention of 1789, whereby the Constitution of the United States was ratified and adopted, and also all acts and parts of acts of the General Assembly ratifying and adopting amendments to the said Constitution, are hereby repealed, rescinded, and abrogated.
We do further declare and ordain, That the union now subsisting between the State of North Carolina and the other States, under the title of the United States of America, is hereby dissolved, and that the State of North Carolina is in full possession and exercise of all those rights of sovereignty which belong and appertain to a free and independent State.
Done in convention at the city of Raleigh, this the 20th day of May, in the year of our Lord 1861, and in the eighty-fifth year of the independence of said State.
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Rather than carry this further at this time, I will simply point out another similarity between the secession of Southern states and the American revolution. In his excellent book Radicalism of the American Revolution, Gordon S. Wood notes that one- third of the American colonists remained loyal to the crown, one third supported the revolution, and one third took neither side in the conflict. And though the numbers are not the same, there were individuals and sections in the South that remained loyal to the Union and individuals and sections in the North that supported the Confederacy.
Perhaps the following quote from Confederate Lt. Gen. Jubal Anderson Early best expresses the feeling of most of the Southern leaders who, like their colonial ancestors, with heavy hearts for what they believed was the failure of the national government to protect their rights, chose the path of independence:
“WHEN the question of practical secession from the United States arose, as a citizen of the State of Virginia, and a member of the Convention called by the authority of the Legislature of that State, I opposed secession with all the ability I possessed, with the hope that the horrors of civil war might be averted and that a returning sense of justice on the part of the masses of the Northern States would induce them to respect the rights of the people of the South.
“While some Northern politicians and editors were openly and sedulously justifying and encouraging secession, I was laboring honestly and earnestly to preserve the Union.
“As a member of the Virginia Convention, I voted against the ordinance of secession on its passage by that body, with the hope that even then, the collision of arms might be avoided and some satisfactory adjustment arrived at. The adoption of that ordinance wrung from me bitter tears of grief; but I at once recognized my duty to abide the decision of my native State, and to defend her soil against invasion. Any scruples which I may have entertained as to the right of secession were soon dispelled by the unconstitutional measures of the authorities at Washington and the frenzied clamor of the people of the North for war upon their former brethren of the South. I recognized the right of resistance and revolution as exercised by our fathers in 1776 and without cavil as to the name by which it was called, I entered the military service of my State, willingly, cheerfully, and zealously.
“When the State of Virginia became one of the Confederate States and her troops were turned over to the Confederate Government, I embraced the cause of the whole Confederacy with equal ardor, and continued in the service, with the determination to devote all the energy and talent I possessed to the common defence. I fought through the entire war, without once regretting the course I pursued, with an abiding faith in the justice of our cause.
(Lieutenant General Jubal Anderson Early, CSA: Autobiographical Sketch and Narrative of the War Between the States, Electronic Edition, University of North Carolina at Chapel Hill, 1999)
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Addendum 1:
Tariff laws and the War Between the States
Most Americans believe that slavery was the principal cause for the “Civil War.” But they have been miseducated. The means and timing of handling the slavery question were at issue, although not in the overly simplified moral sense that predominates in classrooms today. But had it not been for high protective tariffs, and particularly the Morrill Tariff of 1860, there might not have been a war. The conflict that cost the lives of no less than 620,000 Americans and perhaps as many as 50,00 Southern civilians, left thousands of homes and whole towns and cities in ruin, and impoverished many millions for generations afterward might never have happened.
Problems resulting from unjust taxation that was exploiting the agricultural South and enriching Northern manufacturing states were fanned to a furious blaze in 1860 by the passing of the Morrill Tariff. It stirred the smoldering embers of regional mistrust and ignited the fires of Secession in the South. This precipitated a Northern reaction and call to arms that would engulf the nation in the flames of war.
In 1860 there was no U. S. income tax. Considerably more than 90% of U. S. government revenue was raised by tariffs on imports. Tariffs are not only to raise revenue but also to protect domestic industry from foreign competition.
Because the nature and products of regional economies can vary widely, high tariffs are sometimes good for one section of a country but not for another. Thus it was in the early United States when high protective tariff laws created economic advantages for Northern manufacturing and railroad interests with corresponding disadvantages for Southern agricultural interests.
Prior to 1824 the average tariff level in the U. S. had been in the 15 to 20 % range. This was thought to be sufficient to meet federal revenue needs and not excessively burdensome to any section of the country. The increase of the tariff to a 20% average in 1816 was ostensibly to help pay for the War of 1812. It also represented a 26% net profit increase to Northern manufacturers.
In 1824 Northern manufacturing states and the Whig Party under the leadership of Henry Clay began to push for high protective tariffs. These were strongly opposed by the South, whose economy was based primarily on agriculture, the export of these products to European countries, and the import of manufactured goods from those countries.
For example, in the 1850s, the South accounted for 72 to 82% of U. S. exports. At the same time, they were largely dependent on Europe or the North for the manufactured goods for both agricultural production and consumer needs.
It is important to understand at this point that the population of the U.S. in 1860 was about 31 million and that 22 million lived in the North while about 9 million lived in the South. There were 33 states, 18 in the North and 15 in the South (That is, eighteen so-called “free states” and fifteen so-called “slave states.”) Because the Senate (upper house of Congress) is comprised of two senators from each state, the Northern states held a six-vote advantage in the Senate. And because the House of Representatives (the lower house of Congress) is apportioned according to the population of each state, the North held a more than two-times vote advantage over the South. (Because of the “Three-fifts Compromise” during the Constitutional convention, only three of every five slaves were counted for the purpose of apportioning seats in the U.S. House of Representatives, so increasing the vote advantage of the Northern states.)
Late in 1824 Northern political dominance enabled Henry Clay and his allies in Congress to pass a tariff averaging 35%. This resulted in an economic boom in the North but much hardship and political agitation in the South. South Carolina was especially hard hit, the State’s exports falling 25% over the next two years. In 1828 the Northern dominated Congress raised the average tariff level to 50%. Despite strong Southern agitation for lower tariffs, the Tariff of 1832 only nominally reduced the effective tariff rate and brought little relief to the South. These last two tariffs are often referred to as the Tariffs of Abomination.
This led to the Nullification Crisis of 1832 when South Carolina called a state convention and “nullified” the 1828 and 1832 tariffs as unjust and unconstitutional. The resulting crisis came very near provoking armed conflict when President Andrew Jackson threatened to use the military to enforce the tariff laws. But through the efforts of John C. Calhoun, former Vice President and Senator from South Carolina, a compromise was effected in 1833 which over a few years reduced the tariff back to its former rate of about 15%.
Though Henry Clay and the Whigs were not happy to have been forced into a compromise by Calhoun and South Carolina’s Nullification threat, the tariff remained at a level near 15% until 1860. A lesson in economics, regional sensitivities, and simple fairness should have been learned from this confrontation, but if it was learned, it was ignored by ambitious political and business factions in the late 1850s.
The high protective tariff policies of the oldd Whig Party were adopted by the new Republican Party. And then a recession beginning around 1857 gave the cause of protectionism an additional political boost in the Northern industrial states. This led the Congress in May of 1860 to pass the Morrill Tariff Bill (named for Republican Congressman and steel manufacturer, Justin S. Morrill of Vermont), which raised the average tariff from about 15% to 37% with increases to 47% within three years.
Although this was remarkably reminiscent of the Tariffs of Abomination which had led in 1832 to a constitutional crisis and threats of secession and armed force, the House of Representatives passed the Bill 105 to 64. Out of 40 Southern Congressmen, only one Tennessee Congressman voted for it.
Tariff revenues already fell disproportionately on the South, accounting for upwards of 85 to 87% of the U.S. total. While the tariff protected Northern industrial interests, it substantially increased the cost of living and commerce in the South. It also reduced the trade value of Southern agricultural exports to Europe. These forces combined to place a severe economic hardship on most of the Southern states, especially those of the Deep South. Even more galling was that, because of the Northern states’ control of the vote, 80% or more of these tax revenues were being expended on Northern public works and industrial subsidies, thus further enriching the North at the expense of the South. (One might compare the more extensive and more technically advanced system of railroads in the North that were receiving generous government subsidies with those in the South that were not so lavishly subsidized. This less advanced system of transportation played a great part in the defeat of Confederate forces during the War Between the States.)
In the 1860 election, Abraham Lincoln, a former Whig and great admirer of Henry Clay, campaigned for the high protective tariff provisions of the Morrill Tariff, which was incorporated into the Republican Party Platform. Prior to his election, Lincoln boasted that he was "an old Henry Clay tariff Whig" and that he "made more speeches on that subject than any other."
Loyola economics professor Thomas DiLorenzo summarizes, "As soon as the new Republican Party gained power, the average tariff rate was quickly raised from a nominal 15 percent to 47 percent and higher and remained at such levels for decades after the war. Calhoun's free-trade arguments, as eloquent and advanced as they were, were no match for the federal military arsenal." (A more detailed treatice on the subject is made in Tariffs, Blockades, and Inflation by Auburn University professors Mark Thornton and Robert Ekelund.)
On December 10, 1860, just a month after Lincoln’s election, the following appeared in the Daily Chicago Times:
"The South has furnished near three-fourths of the entire exports of the country. Last year she furnished seventy-two percent of the whole...we have a tariff that protects our manufacturers from thirty to fifty percent, and enables us to consume large quantities of Southern cotton, and to compete in our whole home market with the skilled labor of Europe. This operates to compel the South to pay an indirect bounty to our skilled labor, of millions annually."
On December 20, South Carolina proclaimed its independence from the United States, followed early in 1861 by six more lower South states. In spite of this, in his inaugural address on March 4, 1861, Lincoln pledged to enforce the tariff and signed it into law a few days after taking office.
Ohio Sen. John Sherman (brother of Union Gen. William Tecumseh Sherman) explained Lincoln's 1860 election when he said, "Those who elected Mr. Lincoln expect him to secure to free labor its just right to the territories, to protect by wise revenue laws, the labor of our people." (By “free labor,” Sherman meant white labor—as evidenced by numerous “Black Laws” that existed in most Northern states, particularly those of what is now the Midwest, and which severely restricted the activities of black people.)
NOTE: In reading the ordinances of secession of the first seven Confederate states, you'll find primarily economic issues—tariffs , protectionism, federal subsidies to Northern industrial interests, and strict interpretation of the Constitution—which are in stark contrast to the 1860 GOP (hence Lincoln) agenda. In fact the documents of only four of the thirteen seceding states mention slavery as a cause of their departure.
Early Northern public opinion, as reflected in newspapers of both parties, recognized the right of the Southern States to secede and favored peaceful separation. A November 21, 1860, editorial in the Cincinnati Daily Press said this:
“We believe that the right of any member of this Confederacy to dissolve its political relations with the others and assume an independent position is absolute.”
And on March 21, 1861, less than three weeks after Lincoln’s inauguration, the New York Times summarized the majority of editorial opinion in the North:
“There is a growing sentiment throughout the North in favor of letting the Gulf States go.”
But two events in April of 1861 led to war.
Northern industrialists became nervous, realizing that a tariff dependent North would be competing against a free-trade South. They feared not only loss of tax revenue but considerable loss of trade. Soon newspaper editorials began to reflect this nervousness.
(Though the newer western—now mid-western—states were less dependent on manufacturing for their livelihood, they were greatly dependent upon the Ohio-Missouri-Mississippi river system for their commercial interests. They were thus less fearful of the South’s free-trade policy as they were of the possibility of having to pay tolls to pass through the Confederacy via the Mississippi.)
On April 15, 1861, three days after manipulating the South into firing on the tariff collection facility of Fort Sumter in Charleston harbor, Lincoln called for 75,000volunteers to put down the “Southern rebellion.” This, not slavery, led in late April and May to the secession of the Upper SouthStates of Arkansas, Virginia, Tennessee, and North Carolina—states that had previously voted to remain in the Union.
Lincoln believed that the threat of force backed by a now more unified Northern public opinion would quickly (within 90 days) put down secession. His gambit, however, failed and led to a terrible and costly war.
Increased agitation to “free the slaves” as a noble cause to justify what was really a dispute over unfair taxation and States Rights was exacerbated by the lack of success by the Federal army early in the war, the need to keep England from declaring her support of the South, and the need to appease the radical abolitionists.
Writing in a London weekly publication in December of 1861, the famous English author, Charles Dickens, a strong opponent of slavery, said these things about the war going on in America:
“The Northern onslaught upon slavery is no more than a piece of specious humbug disguised to conceal its desire for economic control of the United States.”
Karl Marx, like most European socialists of the time, favored the North. But in an 1861 article published in England, he articulated very well what the major British newspapers—the Times, the Economist, and Saturday Review—had been saying:
“The war between the North and South is a tariff war. The war, is further, not for any principle, does not touch the question of slavery, and in fact turns on the Northern lust for power.”
The Tariff question and the States Rights question were therefore strongly linked, and both are linked to the broader issue of Constitutionally limited government. Because the Morrill Tariff would have dealt the South great economic hardship, it made Secession a compelling alternative to an exploited and unequal union with the North.
Though there was growing tension between North and South over the issue of slavery, that alone was not sufficient to plunge the nation into war. And the notion that a virtuous North invaded the evil South to free the slaves is ludicrous and not supported by historical evidence. (In an August 22, 1862 letter to New York Tribune editor, Horace Greeley, Abraham Lincoln wrote: “My paramount object in this struggle is to save the Union, and is not either to save or destroy slavery. If I could save the Union without freeing any slave I would do it; and if I could save it by freeing some and leaving others alone I would also do that.”)
Five years after the end of the War, prominent Northern abolitionist, attorney and legal scholar, Lysander Spooner, put it this way:
“All these cries of having ‘abolished slavery,’ of having ‘saved the country,’ of having ‘preserved the Union,’ of establishing a ‘government of consent,’ and of ‘maintaining the national honor’ are all gross, shameless, transparent cheats—so transparent that they ought to deceive no one.”
Convinced that union with the North had and would continue to jeopardize their liberties and economic well-being, the Southern states—just as the American Colonies had done in 1776—sought to withdraw from the Union and establish their independence.
As already noted, many in the North felt that the Southern states had the right to separate from the Union. Many even submitted proposed flag designs to the provisional Confederate Congress’s Committee on Flag and Seal. But Northern industrialists—particularly the New England textile manufacturers —saw this as an economic disaster. (Pressure from this section of the country during the election year of 1864 when three of every four New England textile mills were shut down because of a shortage of cotton led Lincoln to authorize the trading of military supplies to the South for cotton. For a more complete discussion of the vigorous trade for cotton that went on between North and South during the war, see The Red River Campaign: Politics and Cotton During the Civil War by Ludwell H. Johnson.) No longer would the North have a tariff-free domestic supply of cotton and other Southern agricultural products such as rice, sugar, tobacco, indigo, and naval stores. In other words, the very import tariff laws that had enriched their coffers now threatened them with economic ruin.
In addition to the immeasurable loss of life and leadership and devastation to property, livestock, and crops during the war, The abuses of “Reconstruction” and “carpetbagger” state governments further exploited and impoverished the South, considerably retarding economic recovery. High tariffs and discriminatory railroad shipping rates continued to favor Northern economic interests, and it is only in recent times that the political and economic fortunes of the South have begun to rise.
As the Scriptures tell us, the love of money is an all-evil root, and the Morrill Tariff was an evil root, which like the proverbial straw that broke the camel’s back, became the final straw that resulted in the secession of seven Southern states. The subsequent declaration of war against those states then led to the breaking away of four more states. Late in 1861 Missouri and Kentucky, though their were serious divisions within these states, were admitted into the Southern confederation.
Unfortunately, as outrageous and unjust as the Morrill Tariff was, because It does not fit the politically correct images and myths of popular American history, its importance has been largely ignored and obscured.
Here are some interesting quotes:
"Stripped of all its covering, the naked question is, whether ours is a federal or consolidated government; a constitutional or absolute one; a government resting solidly on the basis of the sovereignty of the States, or on the unrestrained will of a majority; a form of government, as in all other unlimited ones, in which injustice, violence, and force must ultimately prevail.” -- John C. Calhoun, 1831
"I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. As a result of the war, corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.” —Abraham Lincoln " (From Democracy at Risk: Rescuing Main Street from Wall Street a Populist Vision for the Twenty-First Century. Jeff Gates - author. Perseus Books, Cambridge, MA.)
We have all heard it said that might makes right, and for as long as I have offered the challenge to prove that the secession of Southern states was either un-Constitutional or illegal, the one answer that never fails to be offered is that the war settled the issue for all time. That is, whether an issue be right or wrong, moral or immoral, legal or illegal, Constitutional or un-Constitutional, the final court of justice is war. I believe this editorial from Harper's Weekly Journal Of Civilization, November 25, 1865, sums it up quite well: "The country has decided by the most prolonged and fearful war, by the successful operations of vast armies and navies, by an incalculable sacrifice of precious life, and an enormous expenditure of money, that, whether lawful or unlawful, constitutional or unconstitutional, there shall be no secession of states from the Union. The doctrine of State sovereignty, which was the only plea of the rebellion, has been judged in the battle-field and overthrown by arms."
This, and sadly so, is the only argument against secession that stands.
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Addendum 2: Ft. Sumter
Even though as noted earlier President Buchanan had said that the federal government did not have the right to coerce any seceded state back into the Union, he nevertheless in January of 1861 just a month after Ft. Sumter had been occupied by Federal troups, he sent the ship Star of the West with provisions for the garrison. But as the Star of the West attempted to enter Charleston harbor, a battery on Morris Island manned by Citadel cadets fired wwarning shots across her bow, and she turned back.
Then, shortly after his election, Lincoln submitted the following request in writing to each member of his Cabinet:
Block quote
"My Dear Sir, Assuming it to be possible to now provision Fort Sumter, under all the circumstances is it wise to attempt it? Please give your opinion in writing on this question."
Secretary Cameron wrote that he would advise such an attempt if he "did not believe the attempt to carry it into effect would initiate a bloody and protracted conflict."
Secretary Welles wrote:"By sending or attempting to send provisions into Fort Sumter, will not war be precipitated? It may well be impossible to escape it under any course of policy that may be pursued, but I am not prepared to advise a course that would provoke hostilities...I do not, therefore, under all the circumstances, think it wise to provision Fort Sumter."
Secretary Smith wrote:"The commencement of civil war would be a calamity greatly to be deplored and should be avoided if the just authority of the Government may be maintained without it. If such a conflict should become inevitable, it is much better that it should commence by the resistance of the authorities or people of South Carolina to the legal action of the Government in enforcing the laws of the United States....in my opinion it would not be wise, under all the circumstances, to attempt to provision Fort Sumter."
Attorney General Bates wrote:"I am unwilling, under all circumstances...to do any act which may have the semblance before the world of beginning a civil war, the terrible consequences of which would, I think, find no parallel in modern times...upon the whole I do not think it wise now to provision Fort Sumter."
Postmaster-General Blair and Secretary Chase united in the opinion that it would be wise to make the effort to provision Fort Sumter. (Secretary Chase) then proceeded to declare that, if such a step would produce civil war, he could not advise in its favor, but that, in his opinion, such a result was highly improbable, especially if accompanied by a proclamation from the President, reiterating the sentiments of his inaugural address. "I, therefore," concluded Secretary Chase, "return an affirmative answer to the question submitted to me."
It will be seen...that five of the seven members of the Cabinet concurred in the opinion that no attempt should be made to provision or reinforce Fort Sumter, and that such an attempt would in all probability precipitate civil war.
As Mr. Seward expressed it, "We will have inaugurated a civil war by our own act without an adequate object"; or, in the language of Secretary Welles, "By sending or attempting to send provisions into Fort Sumter, will not war be precipitated?"...I am not prepared to advise a course that would provoke hostilities."
If such were the opinions of leading members of President Lincoln's Cabinet, expressed in confidential communications to their chief, as to the character of the proposed action, can it be deemed unreasonable that the people of Virginia held similar views?
Fourteen days later, the President made a verbal request to his Cabinet for an additional expression of their views on the same subject. Seward and Smith adhered to their former opinions. Chase and Blair were joined by Welles. Bates was noncommittal, and no reply was made by Cameron, so far as records show.
In the light of the facts and arguments presented by the members of the President's Cabinet, men, not a few, will conclude that, if the explosion occurred at Fort Sumter, the mine was laid at Washington.
End block quote
(Source: Virginia's Attitude Toward Secession, Beverley B. Munford, L.H. Jenkins, Richmond Virginia, 1909, pp. 285-289)
Also, it is presumed by all but the most informed students of history that Ft. Sumter was an established and operating military instillation in 1860, but this is not so. A federal garrison had been at Ft. Moultrie on Sullivan’s Island prior to the secession of South Carolina from the Union, and six days later (December 26, 1860) that garrison abandoned Ft. Moultrie and moved out to the yet incomplete installation at Ft. Sumter.
Ft. Sumter is clearly within the territorial limits of the State of South Carolina, so to prove that South Carolina provoked war by firing on that fort, it must be proved that South Carolina did not have the right to declare its independence, for no sovereign state anywhere in the world would permit any other sovereign state to maintain an armed fort right in the middle of its principal harbor.
Moreover, the following excerpt seems to show that, even if South Carolina had not seceded from the Union, the United States government had no legal right to occupy Ft. Sumter:
South Carolina in 1805 (Statutes at Large, Volume V, p. 501) provided as follows in regard to the cessions in Charleston Harbor:
That, if the United States shall not, within three years from the passing of this act, and notification thereof by the governor of this State to the Executive of the United States, repair the fortifications now existing thereon, or build such other forts or fortifications as may be deemed most expedient by the Executive of the United States on the same, and keep a garrison or garrisons therein, in such case this grant or cession shall be void and of no effect.
Paul Graham of Columbia, South Carolina, reminds us…that “Fort Sumter not only was not completed within the three-year limit stipulated in the contract, but was not completed in 1860 when Major Anderson transferred his garrison from Fort Moultrie. Moreover, it had never been garrisoned until he occupied it. So that, having neither been completed nor garrisoned according to the contract, either within the three years specified time, or, for that matter, by 1861, Major Anderson occupied a piece of property that the United States had not the vestige of a right to occupy, and which was under the ownership, jurisdiction, and sovereignty of the State of South Carolina exclusively. In other words, he invaded the State of South Carolina with his troops---unwittingly, it is true, and on orders, but in fact, at any rate. Adverse possession even could not lie here in behalf of the United States, since the United States had not garrisoned it.”
(Source: Confederate Veteran, September 1926, page 325.)
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Addendum 3: Treason
Though it touches on a lengthy argument that goes beyond the scope of this document, I will add that when the great contest of arms was over, the further exploitation of the South—that of black people as well as white—under the guise of so-called “Reconstruction” led to the awful and shameful backlash that resulted in segregation and racial discrimination throughout the South that has only recently begun to pass away. And having said that, I will also say that similar phenomena—usually ignored or defined in more gentle terms—existed at the same time in the North as it did in the South. And it can be argued that there was generally a more paternalistic attitude in the South on the part of white people toward black people; though I would not go to war to defend that hill.
As for the question of treason, those who so tenaciously hang onto that weak thread as sufficient evidence to justify the war that caused such terrible loss of life and destruction of property have neither Constitutional nor legal warrant for it. The radical Republicans who came to power in 1860 at no time showed the slightest evidence of any intention other than that of punishing the South in every way possible for what they claimed to have been treason, but not a single Southerner was ever brought to trial on that charge. (Some historians argue that it may have been Lincoln’s softening on the matter of “punishing the rebels” as inferred from his second inaugural address that led to his assassination.) The idea that the pardoning of Southern leaders was an act of mercy on the part of Northern leaders collapses when compared with the merciless manner in which they carried out “unlimited warfare” against the South.
Salmon P. Chase, Chief Justice of the US Supreme Court and former Secretary of the Treasury in Lincoln’s cabinet, said in 1867: "If you bring these leaders to trial, it will condemn the North, for by the Constitution, secession is not a rebellion. His capture was a mistake. His trial will be a greater one. We cannot convict him of treason."
Civil War historian Clint Johnson elaborates further on the subject:
“Chase made a deal with Davis's attorneys in order to free Davis from ever having to face trial on the question of secession. In short, Chase suggested that Davis’s attorneys argue in front of him in a two-judge panel in Nov. 1868 that Davis had suffered enough punishment under the 14th Amendment, which bans people who have rebelled against the federal government from holding future offices.
“Davis's attorneys argued just that, and Chase voted to free Davis. In effect, Chase, U.S. Supreme Court Chief Justice, met with the attorneys of only one side that would be arguing a case before him. He told them the strategy to use; they did; and Davis's case would have been kicked up to the full U.S. Supreme Court as the other federal judge voted against that argument. Tied 1-1, the Supreme Court would have gotten the case.
“The U.S. Attorney General, realizing that the Chief Justice had already expressed his opinion and had signaled that he would vote with Davis, made a deal for Davis's attorneys to drop all efforts to bring the case to the Supreme Court. In short, the Federal government finally freed Davis because they were afraid that the U.S. Supreme Court would declare that the War was the fault of the North and not the South.”
This is discussed in greater detail in Johnson’s latest book, Pursuit: The Chase, Capture, Persecution and Surprising Release of Confederate President Jefferson Davis, Citadel Press, June 2008. This is a very scholarly work that is well worth reading by all serious students of the War Between the States.
Davis was never brought to trial, a nolle prosequi being entered by the government in his case in December, 1868, and he was also included in the general amnesty of that month.
Gene H. Kizer, Jr., in a lengthy article entitled “The Right of Secession,” summarizes the U.S. government’s position regarding the prosecution of Southern leaders for treason: “It is a virtual certainty that if the North's case had been strong, they would have taken it to trial and vindicated their war against the South once and for all. That the Federal government did not go to court against the Confederate president after keeping him in jail for two years, charged with treason, is more strong evidence that there was indeed a legal right of secession and that the South had exercised it properly. There were no other treason trials against former Confederates, because any one trial would likely prove the legal right of secession, and imminently practical Northerners were not about to lose in a court of law what they had won on the battlefield.”
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I can think of no better words for summary than those expressed by H. Newcomb Morse in the Stetson Law Review when he wrote that the War Between the States did not prove that secession was illegal because many incidents both preceding and following the War support the proposition that the Southern States did have the right to secede from the Union. Instances of nullification prior to the War Between the States, contingencies under which certain states acceded to the Union, and the fact that the Southern States were made to surrender the right to secession, all affirm the existence of a right to secede. He adds that the Constitution's "failure to forbid secession" and amendments dealing with secession that were proposed in Congress as Southern states were seceding strengthened his argument that "the Southern States had an absolute right to secede from the Union prior to the War Between the States." (Morse, op. cit. Vol. XV, No. 2, 1986, p. 420)
My sentiments are with Irish-born Maj. Gen. Patrick R. Cleburne, who, on January 1864, wrote: "Every man should endeavor to understand the meaning of subjugation before it is too late... It means the history of this heroic struggle will be written by the enemy; that our youth will be trained by Northern schoolteachers; will learn from Northern school books their version of the war; will be impressed by the influences of history and education to regard our gallant dead as traitors, and our maimed veterans as fit objects for derision... It is said slavery is all we are fighting for, and if we give it up we give up all. Even if this were true, which we deny, slavery is not all our enemies are fighting for. It is merely the pretense to establish sectional superiority and a more centralized form of government, and to deprive us of our rights and liberties."
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American Revolution & The Secession Of Southern States
