part five of five
I’ve been chatting about secession lately with historian Nathan Hall of Richmond National Battlefield Park. Nathan has been studying the topic deeply for many years and recently spoke on it at the Richmond Civil War Roundtable. I think you’ll enjoy his thoughts, too.
Doug: Did the Civil War settle the question of secession once and for all?
Nathan: The Southern Confederacy claimed independence in 1860, and by 1865, it was defeated on the battlefield and ceased to function as a political entity. In the immediate sense, secession was over. However, the question of whether secession had been against the law or had just been illegally overcome by brute force was far from concluded.
After the war, Jefferson Davis was arrested with the intention of prosecuting him for treason. If Davis’s lawyers could persuade twelve jurors that secession had been legal, Davis and the Confederacy would achieve a degree of vindication according to the law. Ultimately, the government decided the risk of jurors sanctioning secession was too great and declined to take Davis to trial.
A few years later, secession got its day in court in the case of Texas v. White. In 1869, it was the justices of the United States Supreme Court and not a jury who ruled that acts passed by the Confederate legislature in Texas were null and void, and, by extension, the entire Confederacy had been unconstitutional. The court expounded in more detail in the case of Williams v. Bruffy in 1877, in which the court declared that, like the American Revolution, the Confederacy’s legal legitimacy was contingent on its ultimate success. Had the Confederacy won the war, the court conceded, its acts would have become legal, as had the sovereignty of the American republic before them. In essence, the court acknowledged that the prewar ambiguity in the constitution meant that secession’s legality was an unsettled question until such time as it was tested, either in a court or through trial by combat. So, they determined, secession was not “illegal” in 1860, but neither was the Lincoln administration’s use of force to oppose it. The outcome having been settled on the field of battle, the court upheld that hereafter, secession’s status was dead, as far as the law was concerned.
At present, this stands as the last word on secession in American law. Now, as ever, the universal right to revolution is still possessed by Americans, but any appeal to the legal process of secession is bound by the precedents set by both the war and the courts.