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

The Patriotist ^ | 2003 | Al Benson, Jr.

[Aurelius]

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.

[WhiskeyPapa]

Lincoln's hometown newspaper would always be a good, reliable source of moderate, unbiased authoritative reporting.

What, that disunion by armed force is treason?

Why did the rebels raise an army of 100,000 when the U.S. armyy was only 17,000?

They knew it was treason. They just didn't care.

But to speak to your point, what the Illinois State Journal did was to say plainly what the Supreme Court had said at least implicitly.

The big four court cases-- Cohens, McCullough, Martin and Chisholm from early in the nation's life make this plain. In all of those cases, the nature of the government is emphasized:

"Here we see the people acting as the sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the state governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a state to govern themeselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner.

By this great compact however, many prerogatives were transferred to the national Government, such as those of making war and peace, contracting alliances, coining money, etc."

--Chief Justice John Jay, Chisholm v. Georgia 1793

"In the case now to be determined, the defendant, a sovereign state, denies the obligation of a law enacted by the legislature of the Union...In discussing this question, the counsel for the state of Maryland deemed it of some importance, in the construction of the Constitution, to consider that instrument as not emanating from the people, but as the act of sovereign and independent states. It would be difficult to maintain this position....

--John Marshall, majority opinon McCullough v. Maryland 1819

"That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government and in that character, they have no other. America has chosen to be, in many respects, and in many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory.

The constitution and laws of a state, so far as they are repugnant to the constitution and laws of of the United States are absolutely void. These states are constituent parts of the United States; they are members of one great empire--for some purposes sovereign, for some purposes subordinate."

--Chief Justice John Marshall, writing the majority opinion, Cohens v. Virginia 1821

"The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by "the people of the United States."

-Justice Story, Martin v, Hunter's Lessee, 1816

Disunion by armed force is treason.

Walt

[justshutupandtakeit]

While I am getting too fat and do make great jokes I would be quite worried to find that YOU took me seriously. That would undermine my entire confidence in my truthfulness and accuracy. Please do NOT take me seriously.

[justshutupandtakeit]

I hope your requirements for proof in other matters are higher than they are for this. But I doubt they are, afterall you are defending those who rose in treason against the United States of America. And every arguement I have ever seen raised in their defense is based upon a lie.

[Aurelius]

"Please do NOT take me seriously."

You've got it. I am through with you. I have already wasted way too much time on a hopeless yokel with an infinite capacity for self-delusion. Jerks like you are good for only a very limited number of laughs and yours are exhausted . My condolences to your family.

[Capriole]

you are defending those who rose in treason against the United States of America.

Confronted with such illogic, I am grateful that I am no longer compelled to live in Illinois, where your adamantine attachment to blind dogma and a total incapacity to consider another view are typical.

[nolu chan]

The obvious point of my provision of inane editiorial opinions by your source was to demonstrate that it was not a reliable source.

Wartime newspaper editorials tend to be wildly biased.

[nolu chan]

[nc] Viewed as an issue of the ACW, it [the legality of secession] has a different context than currently.

[Walt] What, that disunion by armed force is treason?

I made no reference to disunion by armed force. The southern states had seceded before there was any use of force.

[Walt] Why did the rebels raise an army of 100,000 when the U.S. armyy was only 17,000?

Defense.

[Walt] They knew it was treason. They just didn't care.

They did not know it was treason. They did not believe it was treason. They believed it was lawful. After the war, the government tried to make a case against Davis. It went through a series of special counsels, each of whom concluded the case would be an embarassing loser.

Had the government thought it could prove a case of treason against Davis, it might have tried to do so.

[Walt] But to speak to your point, what the Illinois State Journal did was to say plainly what the Supreme Court had said at least implicitly.

[Illinois State Journal as quoted by Walt] "South Carolina...cannot get out of this Union until she conquers this government. The revenues must and will be collected at her ports, and any resistance on her part will lead to war. At the close of that war we can tell with certainty whether she is in or out of the Union."

Exactly what court decision said anything like that, implicitly or explicitly?

[lentulusgracchus]

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.

I won't go as far as the writer and say that the U.S. Government's failure to give Davis a trial "proves" his point, but I'll agree that it certainly makes the suggestion pretty strongly.

Very interesting post, thank you, and a very interesting topic -- certainly one not much visited by red-diaper historians like Eric Foner and James McPherson. I should go look up what Bruce Catton had to say about the non-trial sometime.

[lentulusgracchus]

Southern Culture is just fine by me, but re-fighting the late unpleasantness is getting to be a waste of bandwith.

Well, it isn't for two reasons:

1. If constitutionalism isn't understood by the People, if they are kept from learning what it really is, then they can't practice it, and various demagogues (Thaddeus Stevens's name came up -- and I'll add Bill and Hillary Clinton) can slide various toxic proposals past them intended to increase demagogic power at the expense of constitutional restraint. Bill Clinton's various gun-grabbing proposals and Hillarycare are two good examples.

2. Just as bad as political demagogues are the Marxist polemicists like the aforementioned Foner and McPherson, who are, notwithstanding but even because of the colossal political failure of Marxism-Leninism in the USSR, attempting to use revisionist history to attack us yet again, and to destroy the People's ability to think about Liberty and Independence by fuzzing and undermining basic principles of the Republic in their false teaching.

As a subset of their attack on the United States, Foner and McPherson and others are pushing in particular one line of argument, that the Civil War was a "war of liberation" (ever hear that phrase before?) in which a vanguard leadership -- Lincoln and his Cabinet -- delivered a people out of bondage and the nation out of darkness. It's claptrap, but it serves their further purposes, and that's why they've been resolutely, and with Sovietical discipline, slanging the South for a dozen years now.

[JudgemAll]

Look, there were 2 parties in this war, one lost, end of story. Let us not raise a third party to assist the party that lost.

[lentulusgracchus]

The only thinking people you know are those ridiculing the puerile crap you post. There are legions of those.

That isn't true. Aurelius knows 4ConservativeJustices, and both of them know GOPcapitalist and me.

You can withdraw your comment now.

[Jeff Gordon]

The Confederacy had to be squashed for three reasons:

1) They were abusing people's rights (slavery).
2) The were sponsering terrorists (such as J.S. Mosby).
3) They were developing weapons of mass destruction (such as the Merimack).

[lentulusgracchus]

Only a few men were able to rise above the inherently inhuman society of the South: Washington, the Laurens family, etc. and actually carry through to a modern position on slavery.

This is raw teleology. That's over on the other thread, "Your Favorite Political Fantasies Vindicated by Revision and Fraud".

[WhiskeyPapa]

Exactly what court decision said anything like that, implicitly or explicitly?

Cohens v. Virginia.

"That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government and in that character, they have no other. America has chosen to be, in many respects, and in many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent.

The people have declared that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the constitution and laws of of the United States are absolutely void. These states are constituent parts of the United States; they are members of one great empire--for some purposes sovereign, for some purposes subordinate."

--Chief Justice John Marshall, 1821

It's mighty cheesy to wait 40 years and then say you don't agree.

Walt

[WhiskeyPapa]

The obvious point of my provision of inane editiorial opinions by your source was to demonstrate that it was not a reliable source.

Blame the messenger, right?

Disunion by armed force is treason.

Walt

[WhiskeyPapa]

I made no reference to disunion by armed force. The southern states had seceded before there was any use of force.

No state can get out of the Union on its own motion.

What kept the Army of the Potomac from marching into Richmond in the summer of 1862?

Walt

[justshutupandtakeit]

Donald Rumsfeld is from Illinois gotta problem wit dat?

Of course, your irrelevent remark is just further indication of the paucity of your ideas or the inability to understand the meaning of treason. Only by claiming it has NO meaning could your position be upheld.

I haven't heard another view from you, merely pathetic attempts to re-write American social history. Since I lived through much of last century I know what the reality of the era was like.

You, on the otherhand, get your views from those who would deny the truth for a policical agenda.

[justshutupandtakeit]

I vaguely recall disputes with you but can't remember if they degenerated into the insults which Aurie prefers to substance.

However, I have seen little real thought in the arguments of those supporting the mad idiocy of the Slavers. Do you rely on the distorted, discredited and deceptive tactics used by so many of them and post previously refuted comments, partial quotes out of context, outright falsehoods easily shown to be false, misinformation and mangle the definitions of words to mean what you want them to mean?

If not, then I consider you a thinking person. If so not so.

[justshutupandtakeit]

Promises, promises.

[SevenDaysInMay]

Had not weeks after Lincoln's inaugeration the Union commander at Ft. Sumpter refused to leave sovereign South Carolina and the Union outpost thus provoked fire, without casualty, the Confederacy might have had more debate time, following decades of debate. Nahhhhhhhhh.

This war of northern aggression was over federal's central government's threatened power versus those who could read and thus knew the limits of the federal government's Constitutional authority. That generation had men of honor. Battles continue.

I had relatives fighting on both sides, mostly in the Western campaigns. I wish the South had won and then reorganized its economy based on the new technologies of the 1870s. With the creative talents of good men lost, slavery would have soon died as the Yankees' slave wages proved so much more profitable. Our Union and Confederacy could then have reached a new union under Constitutional LAW as the early 20th Century proved its new dangers to men of liberty.

Neither the CSA or USA would have become another Canada.