An Analysis of President Lincoln's Legal Arguments Against Secession

Apollo3 ^ | April 9, 1994 | James Ostrowski

[2ndDivisionVet]

INTRODUCTION

On May 27, 1861, the army of the United States of America (the "Union")--a nation formed by consecutive secessions, first from Great Britain in 1776, and then from itself in 17881--invaded the State of Virginia,2 which had recently seceded from the Union, in an effort to negate that secession by violent force.

The historical result of the effort begun that day is well known and indisputable: after four years of brutal warfare, which killed 620,000 Americans, the United States negated the secession of the Confederate States of America, and forcibly re-enrolled them into the Union. The Civil War ended slavery, left the South in economic ruins, and set the stage for twelve years of military rule there.

Beyond its immediate effects, the Civil War made drastic changes in politics and law that continue to shape our world 130 years later. Arthur Ekirch writes: "Along with the terrible destruction of life and property suffered in four long years of fighting went tremendous changes in American life and thought, especially a decline in [classical] liberalism on all questions save that of slavery. * * * Through a policy of arbitrary arrests made possible by Lincoln's suspension of habeas corpus, persons were seized and confined on the suspicion of disloyalty or of sympathy with the southern cause. Thus, in the course of the Civil War, a total of thirteen thousand civilians was estimated to have been held as political prisoners, often without any sort of trial or after only cursory hearings before a military tribunal."3The Civil War caused and allowed a tremendous expansion of the size and power of the federal government. It gave us our first federal conscription law...

[BroJoeK]

OneWingedShark: "the problem is that if a state cannot legally secede then the civil war was Treason because they were still states if the union."

The basic deal at war's end was Unconditional Surrender in exchange for no trials for treason.
So the only Civil War related treason trials were John Brown's gang in 1859 and John Wilkes Booth's bunch in 1865.

But the larger point here is: virtually every "debate" over Slave-Power secession and war against the United States is based on false premises and a-historical claims.
In fact, every pro-Confederate and some Unionists distort the actual history to support their positions.
So getting the facts right is usually job #1 on these threads.

Here are first and foremost facts to remember:

1. The Civil War itself was not caused by slavery, by declarations of secession or by forming the Confederate States of America.
   All of those events happened without war breaking out.

2. In his March 4, 1861 inaugural address, President Lincoln pleaded for peace, while stating his opposition to unilateral secession.
   At the same time, while the Union army was barely 16,000 strong (most scattered in small forts out west), the Confederacy authorized a 100,000 man army.
   As late as April 6 Lincoln tried to avoid war by announcing to South Carolina Governor Pickens his intention to resupply Federal troops in Fort Sumter.

3. Civil War came because Slave-Power secessionists first provoked (by seizing dozens of Federal properties), then started (at Fort Sumter), then formally declared war on the United States (May 6, 1861), then sent military support for confederate forces in Union states (i.e., Missouri).
   All of this happened before a single battle killed a single Confederate soldier, or any Union army invaded a single Confederate state.

4. The first actual battles in Virginia did not happen until after Virginia formally voted to join the Confederacy and its declared war on the United States.

5. All claims that the Confederacy didn't want to "take over" the United States are bogus because the Confederacy claimed as its own US states and territories (Missouri, Kentucky, Arizona) which did not, or could not vote to secede.

6. The Confederacy also eventually sent its forces into every Union state & territory it could reach, including Maryland, Pennsylvania, Ohio, Indiana, Kentucky, Missouri, Kansas, Oklahoma, Arizona & New Mexico.

Bottom line: Civil War was started by the Confederacy, period.

[staytrue]

Ok, if you house gets totally encircled and there are no easments the people who own all the land that encircled your house own you.

States should not own other states so seccession by a group of states to encirle and thereby own another state should not be legal.

[WhiskeyX]

Also recall how the Confederates refused to allow Lincoln to appear on voting ballots in many Souther states, and how Confederate sympathizers and some state officials then proceeded to make attempts to murder President-Elect Lincoln before he could arrvive in Washington, D.C. and take the oath of office at the Presidential inauguration.

[jospehm20]

That is true if you don’t count the union keeping forts in confederate states territory as an act of war.

[jospehm20]

So, whether or not a state can secede from the union should be based on geographical considerations? That is a take I have not heard before.

[Bubba Ho-Tep]

The answer doesn’t change. Either you utilize the system of courts established to adjudicate disputes between the states and the federal government, as specified in the Constitution, or you use our representative bodies to change the law, or you use the powers of amendment laid out, or you launch a revolution and start all over again.

[DoodleDawg]

Has it ever been held that one side is still legally obligated to abide by a contract that has been abrogated by the other?

What if the other side denies that the contract has been abrogated and claims the contract is still in force? Who decides which side is right?

[AEMILIUS PAULUS]

The reason for no convictions of southern leaders being: (1) the National government did not want to exacerbate the hot feelings; (2) a court ruled that it was the states not the individuals that levied war(A Virginia Federal District Court if I remember correctly.)

[tacticalogic]

The answer doesn’t change. Either you utilize the system of courts established to adjudicate disputes between the states and the federal government, as specified in the Constitution, or you use our representative bodies to change the law, or you use the powers of amendment laid out, or you launch a revolution and start all over again.

The choices of recourse don't change. The question was lf the legality of the choices.

[tacticalogic]

What if the other side denies that the contract has been abrogated and claims the contract is still in force? Who decides which side is right?

We all do.

[DoodleDawg]

We all do.

By one side walking out and taking everything with them? Where does that solve the problem? All it does is foster acrimony and guarantee conflict.

[tacticalogic]

By one side walking out and taking everything with them? Where does that solve the problem? All it does is foster acrimony and guarantee conflict.

If your choice is take it with you or lose it, what are you going to do?

[BubbaBasher]

The Articles of Confederation were replaced by the Constitution and were not in effect in 1860 so any of your arguments using them are bogus.

[WhiskeyX]

“The Articles of Confederation were replaced by the Constitution and were not in effect in 1860 so any of your arguments using them are bogus.”

You must be illiterate to make such a blatantly bogus statement. Article VI expressly states the “Engagements” of the Articles of Confederation “entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” The Constitution could hardly make it any plainer than that how the agreements entered into by the States “shall be as valid against the United States under this Constitution, as under the Confederation.”

[BroJoeK]

jospehm20: "That is true if you don’t count the union keeping forts in confederate states territory as an act of war."

Of course not, because the historical precedents were set by British occupation of forts in US Northwest Territory & elsewhere, for over 30 years -- from 1783 to 1814.
These British occupied forts were never considered a casus belli by the US government, and were eventually negotiated peacefully in the Treaty of Ghent, or the earlier Jay Treaty.

Furthermore, there's no law anywhere which says that because a government changes, all previous property ownerships are invalidated.
Today's equivalent would be Fidel Castro claiming in 1960 that the US base at Gitmo suddenly belonged to him.

Such a claim itself is a provocation of war, any military actions to take the property are acts of war.

Bottom line: the Confederate assault on Fort Sumter was equivalent to the Japanese attack on Pearl Harbor: both created a state of war where none previously existed.

[jospehm20]

“Bottom line: the Confederate assault on Fort Sumter was equivalent to the Japanese attack on Pearl Harbor”

Whatever.

[Verginius Rufus]

It was a principle of the common law (dating back to the Wars of the Roses) that a citizen could not be punished for obeying the government that was in control. I ran across that looking at some appeals court cases from the period right after the American Civil War (or whatever it should be called).

The 10th amendment could be construed as meaning that the states had a right to secede. I suspect that most of the men who voted in the state ratifying conventions assumed that secession was a potential option. After all, they were voting to secede from an existing arrangement, the Articles of Confederation.

[Bubba Ho-Tep]

The first three are legal. The fourth rejects all law in its entirety and reverts, as Hobbes puts it, to the State of Nature, with no laws, allowing a new social contract—and laws— to be created.

[WhiskeyX]

“Well from Canada where she fled she was able to influence them a lot better thank you very much...”

That is a false statement, because she no longer had her trading post, her local informers on the Patriots on whom the cruel attacks could be timed and directed, nor the proximity to be timely in directing the attacks.

“she convince many to go north to escape the eventually massacre that was coming after the war ended when the white men would want to go back to stealing the lands of the Indians err pushing the Indians ever westward out of the NY colony..”

You’ve been soaking up too much politically correct false propaganda. You completely omit the role this woman and her allies had in the deaths of innocents, including the Mohawk.

[Triple]

“The problem was there was not a framework in the constitution for peaceful state succession.” - GC

I think the ninth and tenth amendment, and the conditional ratification of the constitution by Virginia cover this issue sufficiently.

Virginia expressly retained the right to secede as a condition of ratification of the constitution.