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.

What fighting? For what cause? Who would have started the fighting in the slave states? Why wouldn't Unionists have chosen to emigrate from the South rather than fight? There was, after all, a great big continent ready to be settled.

If memory serves there were about three million slaves in the South. If fifteen percent had headed north, the people of the North would have begged the South to take these people back. Please remember that when black people headed north during the Great Migration of the 1920-30's, they were not welcomed with open arms.

Applalachia and the Ozarks were as thinly populated then as they are now, and the land is so unsuited to agriculture, especially plantation agriculture, as to be useless. Kentucky and Missouri were slave states; whether they chose to remain in the union would have been decided by the state legislatures. And no one except for a few dreamers and cranks could believe that California and Arizona could support a plantation economy; a belief that slavery could be established in those areas shows only an ignorance of local conditions. In any event, to covet is not to possess; and can you imagine that Virginians or North Carolinians would march off to fight for Arizona? or California? Granted there is a great deal of agriculture in California, but what grows on the left coast is dependent on large scale irrigation which did not come until the 20th Century.

Tarriffs are subject to negotiation, and both sides would have had a strong mutual interest in allowing traffic to flow as freely as possible. In 1860, New Orleans was a bustling port but hardly as critical to the North as was New York, Boston, or Philadelphia. In fact, New Orleans was more critical to the South than the North, if for no other reason than possession of it by the Union would split the Confederacy from Texas.

If there was debt, and I have no reason to doubt the two hundred million dollar figure, that only points toward the need for a peaceful solution to the problem. Also, please remember that factors are commission merchants, not bankers in the modern sense; they are people with an overriding interest in selling the accounts receivable, a task that often becomes difficult in war. Bankers too, if they have brains, realize that war breeds uncertainty, and nothing is worse for banking than uncertainty.

In any event to compare the debt of Southern bankers with the size of the federal budget is absurd. The federal government hardly existed and had little revenue. The federal army totaled about 16,000 men, most of which was poorly armed and scattered across the country.

No sane person thought a civil war would be anything except a disaster. People, then as now, understood the consequences of war. Many of the leaders of the United States had ancestors who fled England because of the turmoil of the English civil war. In addition, the Rothschild family preached constantly to European nations (and to anyone else who would listen) in the 19th Century that war is bad for holders of debt, principally because of the inflation which accompanies war and because of the risk that the debtor will not exist at the end of hostilities.

I mention federation as only one possible outcome of a peaceful settlement. If you consider federation impossible, please detail the reasons. Also, plese detail how the conflict was to be settled short of war, and if the South had been unwilling to initiate the conflict how the first shot would have been fired.

Thanks for the thoughtful post, but fighting between the USA and CSA would have dragged on and on -- where to draw the border?

The simplest way is along state state lines with boundary concessions, were permissable and practical, to united like minded persons. Inevitably there will be a small minority of persons who end up on the opposite sides of the border but it simply becomes impractical to gerrymander them into the right place. Just as with today there are undoubtedly people on the czech side of the border who align with slovakia and vice versa, but the practical border has been settled on and works fairly efficiently for most. Just the same a unionist county of West Virginia bordering Pennsylvania is easy to accomodate, but much harder is a small farming community of 20 german families in south central Texas. In the case of the latter there isn't anything practical that can be done.

would the USA tolerate CSA oppression of Unionists in Appalachia and the Ozarks?

The question could work both ways pertaining to US oppression of confederates in Ohio, Missouri, Maryland etc. But I suspect, as you would find in any peacefully agreed upon separation, that the oppression of either would bear little resemblance to that during, and as a result of, the war.

which side got Kentucky and Missouri?

Let 'em vote on where they want to go and if they are deeply divided, find a reasonably agreed upon border to split. That's the most practical approach.

would Louisiana charge tariffs for goods flowing down the Mississippi

Most likely not as the confederate economic ideology was largely anti-tariff beyond its revenue capacities. A much more likely scenario is the US government setting up a tariff collection point on the Mississippi somewhere around Missouri. This policy was actually the subject of much speculation and discussion during early 1861 when they were trying to figure out how to collect the Morrill tariff. Would it have caused the confederates to go to war against them had they implemented it then? Based on the writings of the time, probably not.

many wars have been fought for far less than that

...yet you continuously downplay and refuse to acknowledge the relevance of another tariff dispute in causing the civil war. Go figure.

you think that slaves would not flee north once the USA was no longer obligated to arrest fugitive slaves and ship them back?

Nobody ever said they wouldn't flee north, but that was evidently a risk the confederates were willing to take. Were it not they would not have attempted separation.

you can't imagine why the CSA would covet California and Arizona?

Southern Arizona-New Mexico territory decided for itself to align with the CSA which, interestingly enough, was initially reluctant to take them in.

[nolu chan] "On the whole case, therefore, our conclusion is that the State of Texas is entitled to the relief sought by her bill, and a decree must be made accordingly."

[Non-Sequitur] Minority opinion. The majority held, "Considered, therefore, as transactions under the Constitution, the Ordinance of Secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the Acts of her Legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union."

I regret to inform you that you are just WRONG. Your quote is not the holding of anything. It is from the part of the ruling where the Chief Justice, writing for the majority, ruled that the court had jurisdiction to hear the case.

Proceed downward in the decision and you read: "The question of jurisdiction being thus disposed of, we proceed to the consideration of the merits as presented by the pleadings and the evidence."

What you keep quoting was not what was decided on the merits by the court. It is NOT the HOLDING. It is not the substance of the case. It is from the determination that the court had jurisdiction to decide the actual case which was about bonds.

What I quoted is the actual decision of the case itself. I quoted the MAJORITY decision, as written by the Chief Justice.

After what I quoted, Justice Grier begins his dissent.

U.S. Supreme Court
State of Texas v.; White, 74 U.S. 700 (1868)

The CHIEF JUSTICE delivered the opinion of the court. This is an original suit in this court, in which the State of Texas, claiming certain bonds of the United States as her property, asks an injunction to restrain the defendants from receiving payment from the National government, and to compel the surrender of the bonds to the State.

* * *

The other allegation presents a question of jurisdiction. It is not to be questioned that this court has original jurisdiction of suits by States against citizens of other States, or that the States entitled to invoke this jurisdiction must be States of the Union. But, it is equally clear that no such jurisdiction has been conferred upon this court of suits by any other political communities than such States.

If, therefore, it is true that the State of Texas was not at he time of filing this bill, or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it. [74 U.S. 700, 720] We are very sensible of the magnitude and importance of this question, of the interest it excites, and of the difficulty, not to say impossibility, of so disposing of it as to satisfy the conflicting judgments of men equally enlightened, equally upright, and equally patriotic. But we meet it in the case, and we must determine it in the exercise of our best judgment, under the guidance of the Constitution alone.

* * *

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.

Our conclusion therefore is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.

* * *

The question of jurisdiction being thus disposed of, we proceed to the consideration of the merits as presented by the pleadings and the evidence.

And the first question to be answered is, whether or not the title of the State to the bonds in controversy was divested by the contract of the military board with White and Chiles?

That the bonds were the property of the State of Texas on the 11th of January, 1862, when the act prohibiting alienation without the indorsement of the governor, was repealed, admits of no question, and is not denied. They came into her possession and ownership through public acts of the general government and of the State, which gave notice to all the world of the transaction consummated by them. And, we think it clear that, if a State, by a public act of her legislature, imposes restrictions upon the alienation of her property, that every person who takes a transfer of such property must be held affected by notice of them. Alienation, in disregard of such restrictions, can convey no title to the alienee. In this case, however, it is said, that the restriction imposed by the act of 1851 was repealed by the act of 1862. And this is true if the act of 1862 can be regarded as valid. But, was it valid? The legislature of Texas, at the time of the repeal, constituted one of the departments of a State government, established in hostility to the Constitution of the United States. It cannot be regarded, therefore, in the courts of the United States, as a lawful legislature, or its acts as lawful [74 U.S. 700, 733] acts. And, yet, it is an historical fact that the government of Texas, then in full control of the State, was its only actual government; and certainly if Texas had been a separate State, and not one of the United States, the new government, having displaced the regular authority, and having established itself in the customary seats of power, and in the exercise of the ordinary functions of administration, would have constituted, in the strictest sense of the words, a de facto government, and its acts, during the period of its existence as such, would be effectual, and, in almost all respects, valid.

And, to some extent, this is true of the actual government of Texas, though unlawful and revolutionary, as to the United States.

It is not necessary to attempt any exact definitions, within which the acts of such a State government must be treated as valid, or invalid. It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens, such for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual, though unlawful government; and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void. What, then, tried by these general tests, was the character of the contract of the military board with White and Chiles?

That board, as we have seen, was organized, not for the defence of the State against a foreign invasion, or for its protection against domestic violence, within the meaning of these words as used in the National Constitution, but for the purpose, under the name of defence, of levying war against the United States. This purpose was, undoubtedly, unlawful, for the acts which it contemplated are, within the express definition of the Constitution, treasonable. [74 U.S. 700, 734] It is true that the military board was subsequently reorganized. It consisted, thereafter, of the governor and two other members, appointed and removable by him; and was, therefore, entirely subordinate to executive control. Its general object remained without change, but its powers were 'extended to the control of all public works and supplies, and to the aid of producing within the State, by the importation of articles necessary and proper for such aid.' And it was insisted in argument on behalf of some of the defendants, that the contract with White and Chiles, being for the purchase of cotton- cards and medicines, was not a contract in aid of the rebellion, but for obtaining goods capable of a use entirely legitimate and innocent, and, therefore, that payment for those goods by the transfer of any property of the State was not unlawful. We cannot adopt this view. Without entering, at this time, upon the inquiry whether any contract made by such a board can be sustained, we are obliged to say that the enlarged powers of the board appear to us to have been conferred in furtherance of its main purpose, of war against the United States, and that the contract, under consideration, even if made in the execution of these enlarged powers, was still a contract in aid of the rebellion, and, therefore, void. And we cannot shut our eyes to the evidence which proves that the act of repeal was intended to aid rebellion by facilitating the transfer of these bonds. It was supposed, doubtless, that negotiation of them would be less difficult if they bore upon their face no direct evidence of having come from the possession of any insurgent State government. We can give no effect, therefore, to this repealing act.

It follows that the title of the State was not divested by the act of the insurgent government in entering into this contract. But it was insisted further, in behalf of those defendants who claim certain of these bonds by purchase, or as collateral security, that however unlawful may have been the means by which White and Chiles obtained possession of the bonds, [74 U.S. 700, 735] they are innocent holders, without notice, and entitled to protection as such under the rules which apply to securities which pass by delivery. These rules were fully discussed in Murray v. Lardner. 18 We held in that case that the purchaser of coupon bonds, before due, without notice and in good faith, is unaffected by want of title in the seller, and that the burden of proof in respect to notice and want of good faith, is on the claimant of the bonds as against the purchaser. We are entirely satisfied with this doctrine.

Does the State, then, show affirmatively notice to these defendants of want of title to the bonds in White and Chiles?

It would be difficult to give a negative answer to this question if there were no other proof than the legislative acts of Texas. But there is other evidence which might fairly be held to be sufficient proof of notice, if the rule to which we have adverted could be properly applied to this case.

But these rules have never been applied to matured obligations. Purchasers of notes or bonds past due take nothing but the actual right and title of the vendors. 19

The bonds in question were dated January 1, 1851, and were redeemable after the 31st of December, 1864. In strictness, it is true they were not payable on the day when they became redeemable; but the known usage of the United States to pay all bonds as soon as the right of payment accrues, except where a distinction between redeemability and payability is made by law, and shown on the face of the bonds, requires the application of the rule respecting overdue obligations to bonds of the United States which have become redeemable, and in respect to which no such distinction has been made.

Now, all the bonds in controversy had become redeemable before the date of the contract with White and Chiles; and all bonds of the same issue which have the indorsement of [74 U.S. 700, 736] a governor of Texas made before the date of the secession ordinance,-and there were no others indorsed by any governor,-had been paid in coin on presentation at the treasury Department; while, on the contrary, applications for the payment of bonds, without the required indorsement, and of coupons detached from such bonds, made to that department, had been denied.

As a necessary consequence, the negotiation of these bonds became difficult. They sold much below the rates they would have commanded had the title to them been unquestioned. They were bought in fact, and under the circumstances could only have been bought, upon speculation. The purchasers took the risk of a bad title, hoping, doubtless, that through the action of the National government, or of the government of Texas, it might be converted into a good one.

And it is true that the first provisional governor of Texas encouraged the expectation that these bonds would be ultimately paid to the holders. But he was not authorized to make any engagement in behalf of the State, and in fact made none. It is true, also, that the Treasury Department, influenced perhaps by these representations, departed to some extent from its original rule, and paid bonds held by some of the defendants without the required indorsement. But it is clear that this change in the action of the department could not affect the rights of Texas as a State of the Union, having a government acknowledging her obligations to the National Constitution. It is impossible, upon this evidence, to hold the defendants protected by absence of notice of the want of title in White and Chiles. As these persons acquired no right to payment of these bonds as against the State, purchasers could acquire none through them.

On the whole case, therefore, our conclusion is that the State of Texas is entitled to the relief sought by her bill, and a decree must be made accordingly. 20 [74 U.S. 700, 737]

Mr. Justice GRIER, dissenting.

* * *

[snip]

[Gianni] The constitution didn't say that Sherman's troops couldn't rape southerners on their way through, either, so that must've been okey-dokey as well.

[n-s] The Constitution is silent on the subject of murder, too, but that doesn't mean I think that it is legal. That's because I don't confuse Constitutional law with criminial law or civil law.

The applicable law is Military Law. Military Law is that system of laws enacted by the legislative power for the government of the army and navy of the United States, and of the militia when called into the actual service of the United States.

Criminal codes today are found under Title 18. Military Codes are found under Title 10. Civilian courts are Article III courts, part of the judicial branch. Military courts are creatures of the executive branch.

Executive Power, Benjamin Robbins Curtis, 1862, p.22

But the military power of the President is derived solely from the constitution; and it is as sufficiently defined there as his purely civil power. These are its words: "The President shall be the Commander-in-chief of the army and navy of the United States, and the militia of the several States, when called into the actual sevice of the United States."

This is his military power. He is the general-in-chief; and as such, in prosecuting war, may do what generals in the field are allowed to do within the sphere of their actual operations, in subordination to the laws of their country, from which alone they derive their authority.*

* The case of Mitchel vs. Harmony (13 How. 115), presented for the decision of the Supreme Court of the United states, the question of the extent of the right of a commanding general in the field to appropriate private property to the public service, and it was decided that such an appropriation might be made, in case it should be rendered necessary by an immediate and pressing danger or urgent necessity existing at the time, and not admitting of delay, but not otherwise.

In delivering the opinion of the court, The Chief Justice said: -- "Our duty is to determine under what circumstances private property may be taken from the owner by a military officer in a time of war. And the question here is: whether the law permits it to be taken, to insure the success of any enterprise against a public enemy, which the commanding officer may deem it advisable to undertake. And we think it very clear that the law does not permit it. The case mentioned by Lord Mansfield, in delivering his opinion in Mostyn vs. Fabrigas (1 Cowp. 180), illustrates the principle of which we are speaking. Captain Gambier, of the British navy, by the order of Admiral Boscawen, pulled down the houses of some sutlers on the coast of Nova Scotia, who were supplying the sailors with spirituous liquors, the health of the sailors being injured by frequenting them. The motive was evidently a laudable one, and the act done for the public service. Yet is was an invasion of the rights of private property and without the authority of law; and the officer who executed the order was held liable to an action; and the sutlers recovered damages against him to the value of the property destroyed. This case shows how carefully the rights of property are guarded by the laws of England; and they are certainly not less valued, nor less securely guarded, under the Constitution and laws of the United States."

It may safely be said that neither of the very eminent counsel by whom that case was argued, and that no judge before whom it came, had then advanced to the conception that a commanding general may lawfully take any measure which may best subdue the enemy. The wagons, mules, and packages seized by General Donophon, in that case, were of essential service in his brilliant and successful attack on the lines of Chihuahua. But this did not save him from being liable to their owner as mere wrongdoer, under the Constitution and laws of the United States.

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