If Secession Was Illegal - then How Come...?

Over the years I've heard many rail at the South for seceding from the 'glorious Union.' They claim that Jeff Davis and all Southerners were really nothing but traitors - and some of these people were born and raised in the South and should know better, but don't, thanks to their government school 'education.'

Frank Conner, in his excellent book The South Under Siege 1830-2000 deals in some detail with the question of Davis' alleged 'treason.' In referring to the Northern leaders he noted: "They believed the most logical means of justifying the North's war would be to have the federal government convict Davis of treason against the United States. Such a conviction must presuppose that the Confederate States could not have seceded from the Union; so convicting Davis would validate the war and make it morally legitimate."

Although this was the way the federal government planned to proceed, that prolific South-hater, Thaddeus Stevens, couldn't keep his mouth shut and he let the cat out of the bag. Stevens said: "The Southerners should be treated as a conquered alien enemy...This can be done without violence to the established principles only on the theory that the Southern states were severed from the Union and were an independent government de facto and an alien enemy to be dealt with according to the laws of war...No reform can be effected in the Southern States if they have never left the Union..." And, although he did not plainly say it, what Stevens really desired was that the Christian culture of the Old South be 'reformed' into something more compatible with his beliefs. No matter how you look at it, the feds tried to have it both ways - they claimed the South was in rebellion and had never been out of the Union, but then it had to do certain things to 'get back' into the Union it had never been out of. Strange, is it not, that the 'history' books never seem to pick up on this?

At any rate, the Northern government prepared to try President Davis for treason while it had him in prison. Mr. Conner has observed that: "The War Department presented its evidence for a treason trial against Davis to a famed jurist, Francis Lieber, for his analysis. Lieber pronounced 'Davis will not be found guilty and we shall stand there completely beaten'." According to Mr. Conner, U.S. Attorney General James Speed appointed a renowned attorney, John J. Clifford, as his chief prosecutor. Clifford, after studying the government's evidence against Davis, withdrew from the case. He said he had 'grave doubts' about it. Not to be undone, Speed then appointed Richard Henry Dana, a prominent maritime lawyer, to the case. Mr. Dana also withdrew. He said basically, that as long as the North had won a military victory over the South, they should just be satisfied with that. In other words - "you won the war, boys, so don't push your luck beyond that."

Mr. Conner tells us that: "In 1866 President Johnson appointed a new U.S. attorney general, Henry Stanburg. But Stanburg wouldn't touch the case either. Thus had spoken the North's best and brightest jurists re the legitimacy of the War of Northern Aggression - even though the Jefferson Davis case offered blinding fame to the prosecutor who could prove that the South had seceded unconstitutionally." None of these bright lights from the North would touch this case with a ten-foot pole. It's not that they were dumb, in fact the reverse is true. These men knew a dead horse when they saw it and were not about to climb aboard and attempt to ride it across the treacherous stream of illegal secession. They knew better. In fact, a Northerner from New York, Charles O'Connor, became the legal counsel for Jeff Davis - without charge. That, plus the celebrity jurists from the North that refused to touch the case, told the federal government that they really had no case against Davis or secession and that Davis was merely being held as a political prisoner.

Author Richard Street, writing in The Civil War back in the 1950s said exactly the same thing. Referring to Jeff Davis, Street wrote: "He was imprisoned after the war, was never brought to trial. The North didn't dare give him a trial, knowing that a trial would establish that secession was not unconstitutional, that there had been no 'rebellion' and that the South had got a raw deal." At one point the government intimated that it would be willing to offer Davis a pardon, should he ask for one. Davis refused that and he demanded that the government either give him a pardon or give him a trial, or admit that they had dealt unjustly with him. Mr. Street said: "He died 'unpardoned' by a government that was leery of giving him a public hearing." If Davis was as guilty as they claimed, why no trial???

Had the federal government had any possible chance to convict Davis and therefore declare secession unconstitutional they would have done so in a New York minute. The fact that they diddled around and finally released him without benefit of the trial he wanted proves that the North had no real case against secession. Over 600,000 boys, both North and South, were killed or maimed so the North could fight a war of conquest over something that the South did that was neither illegal or wrong. Yet they claim the moral high ground because the 'freed' the slaves, a farce at best.

rb: They believed the Constitution allowed them to secede.

WP: They did not believe that. They aimed to get what they wanted at the point of a gun.

Jefferson Davis:

...the tenth amendment of the Constitution declared that all which had not been delegated was reserved to the States or to the people. Now, I ask where among the delegated grants to the Federal Government do you find any power to coerce a state; where among the provisions of the Constitution do you find any prohibition on the part of a State to withdraw; and if you find neither one nor the other, must not this power be in that great depository, the reserved rights of the States? How was it ever taken out of that source of all power to the Federal Government? It was not delegated to the Federal Government; it was not prohibited to the States; it necessarily remains, then, among the reserved powers of the States.

Is Davis wrong in his argument that powers not delegated to the Federal Government by the Constitutiton remain powers of the states?

Among the powers delegated to the federal government is the power to decide which powers are delegated to the states and which to the states.

Yes, the founders were sooo trusting of government that they put within its grasp the power to expand upon itself.

RB, you and the other neo-Confederates on Free Republic are re-hashing Confederate arguments becuase you don't have the guts to state what you really want -- the destruction of the United States of America.

Awfully sporty to say something like that with nothing to support it except your undying worship of something that we view as a necessary evil. You have been repeatedly told that none of us are neo-confederates and your continued use of that term, along with your willingness to label us traitors to our country because we don't toe the republican line when it diverts from conservative self-government make me wonder about both your command of the English language and your ability to reason.

Maybe you should think twice before shooting off your mouth.

You certainly picked your screen name well. My Texas public school education (Bryan Adams High School, Dallas, TX) taught me that Standwaite Waite, the half-Cherokee confederate general was the last to surrender his command in 1865. Like your namesake did in 1865, you continue to fight a rear guard action. Unlike your namesake, you fail to realize when the jig is up.

Waite, your reaction to every comment or observation that does not fit your view of the world is that it's "damnyankee propoganda." I truly do not think you have the intellectual capacity to assemble a reasoned argument. Your answers are usually knee-jerk reactions. You rarely cite your sources. In my conservative, private university education, I was taught that if your are staing opinion, then say its opinion, and when your are quoting fact, give your source. I'm not always as diligent as I should be, but you almost never are.

Let's look at the comment that there were "at least 100,000 black servicemen (in the confederate service) and that "US Archives and state archivists" prove it. First of all, most reputable military historians would not consider slaves who are used as cooks, wagon drivers, officers' servants, etc., to be "servicemen." A slave used by a slave-owing army is not a soldier. Certainly, some black slaves fought when given freedom as an incentive - this was true during the Revolutionary War too. IO can cite the 1st LA native Guards (about 3,000) and the Richmond Howitzersn (about 1,000).

Let's look at the numbers quoted in the Diary of Dr. Lewis Steiner with regard to Lee's Army of Northern Virginia about the time of the Battle of Antietam. Steiner noted that Lee had about 64,000 men. 40,000 of those were "effectives" (soldiers capable a carrying firearms and fighting). Steiner also noted that Lee had about 3,000 "negros." Most were engaged in servile roles, however, about 1,000 were comabat soldiers - that is to say they took part in battle, either as infantry men, or more often, as part of artillary crews. The highest documented estimates of black service in all capacities in the confederate military is about 7 to 8 percent. The highest reasonable estimates of black combatants is 1 to 2 percent.

The Confederate Congressional Record clearly shows how vehement the Southerners were against using "coloreds" as soldier. It wasn't until Lee pleaded with the confederate government, as his army was on the verge of collapse, to allows black openly into the army, was something done about it. "Authority for this was finally received from the State of Virginia and on April 1st 1865, $100 bounties were offered to black soldiers. Benjamin exclaimed, "Let us say to every Negro who wants to go into the ranks, go and fight, and you are free Fight for your masters and you shall have your freedom." Confederate Officers were ordered to treat them humanely and protect them from "injustice and oppression"." It is easy to understand why some white southerners would be nervous about arming people who still carried scars on their backs from the whippings they had received.

I recently read a piece by a military historian (whose name I forget), who has been reserching the letters written by Confederate soldiers. This historian reported he had looked at over 10,000 letters and had found NO mention of black soldiers. One could reasonably argue that the black soldiers were illiterate and did not write, but one would think that there would be at least a mention of "negro" or "colored" soldier - but their is none. This is not "propoganda." This is research that points to the fallacy of your "100,000 black soldiers" claim. Sure, I've read some of the historical websites and see the 65,000 85,000 and 100,000 numbers, but I see no documentation.

With regard to "massacres," rather than use sensationalized newpaper accounts, I like to read the first hand accounts from the participants. Go back and read what Forrest said after the Fort Pillow Incident. I paraphrase, "We wanted to shows the Northerners that coloreds couldn't stand up to Southerners." At Fort Pillow, 3/4th of the blacks were killed - much higher percentage than the white troops. The Southern accounts suggested that many blacks were shot after surrender. To his credit, NB Forrest did not order the massacre.

If you would like more, read Dale's account of the Owensboro, Ky, raid. In that one, the rebels caught a group of black Union soldiers, executed them, and then burned their bodies on a flatboat they had set adrift. Dale was a rebel participant - no Northern revison here.

You suggest that I am "south hating." In fact, I have irons in both fires. I have an ancestor who was captured at Fort Donelson when his cowardly Confederate political generals fled in the night. He was later traded and discharged because of his medical condition - lived a long life post-war. I have another eastern Tennesee relative who was a loyal Unionist. He was a cousin of another loyal Unionist, Sam Houston. Then another branch of the family from New England, "Black Republicans," fought honorably for the north. One of them is planted out here in California, where he came in the 1880's. They were abolitionists, and there were a lot more than 10,000 by 1860.

Someday, I hope, you will be able to "edumakate" yourself about the history of our country, rather than live in your delusional reality. That's the truth, "nothing more, nothing less."

It is not for me -- or you -- to differentiate between federal and state powers. That job is up to the three branches of the federal government.

From James Madison, Father of the Constitution:

It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal, superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.

But I forget. He wasn't a Republican, so what does he know.

I believe WhiskeyPapa was talking about the south testing the validity of secession prior to unilaterally walking out. There were several ways of doing so. Back in my #527 I litsed a few. They aren't my original ideas. Indeed, some of them were brought up by Jefferson Davis in debate before secession:

"What might a Southern State, circa 1860, have done to lawfully leave the Union, other than unilateral secession?

(1) Certainly, the State's legislature and executive could have authorized the Congressional delegation to ask the other States for its release. Could Congress simply have passed a law, like the Northwest Ordinance, with a signature by the President, cutting a State free from the Union?

(2) Failing that, Congress could have passed a law detailing how a State or States could leave the Union.

(3) A State's government could have made a declaration of independence and sued in Federal court to determine if their unwritten "right of secession" existed. In 1860, the US Supreme Court still tilted decidely to the South, and it is not impossible that the Court would have allowed this.

(4) The representatives of a State or region could have proposed a Constitutional Amendment clarifying the process of secession or dissolution of the Nation.

(5) The same people could have called for another Constitutional convention to propose a secession amendment."

In short, by unilaterally seceding, the rebel states wagered that the North had no stomach for fighting to hold the Union. They figured that Lincoln would be another spineless Democrat, like Buchanan. They figured wrong.

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