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.

I don't believe a State can legally seceed, unless the Constitution itself were amended to so provide. The key problem for me is that once granted U.S. citizenship cannot be taken away, certainly not by a State government. The Confederate states were telling citizens of the U.S. that they were now citizens of a new country or if they didn't like that they had to leave their homes and move north. That's not something that can be done by a state vote.

Take an example. My ancestors, like many others, were pro-Union North Carolinians. They could not be deprived of their U.S. citizenship by any vote of the North Carolina legislature. Indeed, if you combined pro-Union whites with blacks, a majority of North Carolinians would have been opposed to secession.

1. Texans elected representatives to a secession convention.
2. The representatives voted to secede but put the question before the voters of the state.
3. Texas voters overwhelmingly voted to secede.

That is more than the original 13 states did to ratify the Constitution.

"Political power comes from the barrels of guns." Chairman Mao
The republic has been on a slippery slope since Appamatox. The rule of law is a fiction. As recently as the passage of the Civil Rights Act of 1964, congress cited it's jurisdiction by basing it on the Commerce Clause of the Constitution. Now laws are passed without a second's thought of Constitutional authority-they're legitimized by the power to compel obedience. Mao was right.
Having said that, this country wouldn't be what it is today if it had fragmented into feifdoms-the division between North and South wouldn't have been the last fracture in the Union. As a practical matter, Lincoln was right. He just didn't happen to have the law on his side. That's why the war was so hard fought-from their perspectives, both sides were right.

"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."

And you and the other cut and paste cheap shot artists call yourselves freedom loving Americans. I'm sick and tired of you calling the South a bunch of treasonous villains. What if the million mom march gets its way and the next Bill Clinton persuades congress to confiscate all weapons. I guess you'll just stand by and let it happen because you wouldn't want to be labeled a "traitor". Sheesh, you guys are way out there.

As a southerner, I consider the secession of South one of the more foolish political acts of the last two hundred years. It is an act comparable to the Japanese attack on Pearl Harbor or the German declaration of war on the United States in 1941.
Secession, by its nature, was a political and not a legal question. Had the South attempted to leave the Union through an act of Congress, it is possible that the North might have been amenable to sort of separation, especially since by 1860 many abolitionists had concluded that slavery would never be abolished except by force, a step that few in the North were willing to take. In fact, many Northerners, and not only the abolitionists, damned union with the slaveholding South, and thought it better to rend the Union than to continue the relationship.
Linclon would have been averse to legal separation, but he was elected by only a minority of votes and in a weak political position. But if the South were to have been reasonable and willing to solve the crisis peacefully, Linclon might have forced to accept a compromise that went against his desire to perserve the Union.

Excellent points. You're thinking of the secessionists as rational and responsible political actors who could have chosen a wise and prudent course, though. A calmer, more thoughtful approach might well have worked, but I suspect the secessionists were more driven by emotion. They did as they pleased and expected other Americans to go along with their wishes. For those others, the anarchic consequences of the schism and the bellicose actions of the rebels called for a response. When you push things to the breaking point out of uncontrollable emotion, as the Confederates did, others will similarly react out of apprehension or distress to preserve order.

Defenders of the Confederacy look back through a haze of resentment, grievance, and victimhood and ask why unionists didn't simply accept the secessionists' demands. But of course, the view of the Confederates as defenseless victims is a product of what happened later in history. Rebel demands, and the army backing them up, appeared very threatening to those who didn't support them.

I remember a graphic in a Texas history book, from my youth, that showed the western half of the State was not consulted in the Feb 1, popular vote. I think it is also fair to say that most of the population was along the coast and up the Louisiana border.

However, I think there is still a lingering resentment how Gov. Sam Houston got treated.

However, I think there is still a lingering resentment how Gov. Sam Houston got treated.

You may be correct. I respect him and had relatives fight under him at San Jacinto. He worked hard to make sure that the first battle of the WBTS did not occur in Texas. The first encounter with actual bloodshed did occur in Texas though, but he was out of office by then.

Houston was for Texas, period. Here is an 1863 letter he wrote to Confederate General McGruder about driving the Federals out of Galveston:

General: It gives me great pleasure to mingle my congratulations with the many thousands that you have received. You, sir, have introduced a new era in Texas by driving from our soil a ruthless enemy. ... Your advent was scarcely known in Texas when we were awakened from our reverie to the realities of your splendid victory. Its planning and execution reflect additional glory on your former fame, as well as on the arms of Texas.
Sam Houston, January 7, 1863.

I think the term used today, to describe that situation is "devolution." The context was in response to the question of "quorum" in the House and Senate. It is clear that from July 1861, until the states were "re-admitted" (re-qualified, re-organized, or whatever) the rebel states did not count toward total membership and quorum determination. Organized and unorganized territories have different levels of administration. These range from commissioners to appointed governors to self-elected governors. In some cases they can send non-voting members to the House of Representatives. After secession, the Federal government never recognized the validity of the rebel state governments or the CSA. hence, those opoulations fell back under the term "unorganized territory of the United States." That is how I recall the logic used - but I have not gone back to research the specifics.

In any case, as I cited in an earlier post, U.S. Grant in his memoirs wrote that if the South had debated secession honestly and asked out, they might have gotten it. Instead they took a unilateral course and sought to seize the assets (physical and military) of people of the United States. It was a gamble, and the South was doomed to lose in the long run.

Non sequitur presents one lawful way, among several, the South could have accomplished this.

The black soldiers of the Louisiana Native Guards were never accepted into the rebel military

Not true. As I have previously documented for you, the Native Guard divisions recieved official military orders from the provost general's office in Louisiana over the course of several months before the fall of New Orleans. They actively participated in military preparations for the city upon reciept of those orders.

That was essentially the case. Excepting El Paso and a few Rio Grande settlements, most of the areas to the west of San Antonio and Austin were uninhabited by anyone but comanches.

Greenbacks were not at all worthless, never dipping much below half a gold dollar in value.

An 1850's era $20 double eagle contained 0.9675 ounces of gold. Have you checked how many "greenbacks" that 0.9675 ounces of gold goes for today? Get back to me when you have done so and then we can discuss what is worthless.

You have been repeatedly told that none of us are neo-confederates and your continued use of that term

It seems that Partisan dwells in the pejorative almost as much as he dwells in gratuitous claims. Interestingly enough, one could classify him as a "neo-reconstructionist" or a "neo-carpetbagger" or even a "neo-monarchist" with far greater legitimacy than his own similarly phrased attacks upon others.

"re-admitted" (re-qualified, re-organized, or whatever)

I think that you are underplaying the importance of that word in the context of that sentence. If it is truly 're-admittance' as I have seen it used before, then it seems like an admission that those states were out of the Union. Let me ask, why then, admit them as they were before, if the North could have redrawn the lines as they pleased? I'm on a tangent now, so I'll stop.

Getting back on topic, it seems as though the radicals (and even Lincoln) moved the South into/out of the Union as it suited their needs throughout the war and reconstruction.

It seems that Partisan dwells in the pejorative

Are you sure you want to converse with me? After all, I've been 'outed as a Democrat provocatuer' and all.

The more he posts, the more I think I understand his perspective on things: His love is not for this country, but for its government. This is because his ideology is not conservative, but 'republican.' In short, he's a lynch-mob partisan who'll scream a battle cry for any cause, so long as those who surround him call themselves 'republican.'

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