Questions of Secession (conclusion)

Jefferson Davis at Fort Monroe

Jefferson Davis at Fort Monroe

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.

Jefferson_Davis_by_Vannerson_1859After 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.


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23 Responses to Questions of Secession (conclusion)

  1. Al Mackey says:

    There are a couple of recent books on the case of United States v. Jefferson Davis. There was no fear that secession would be proven to be legal. The concern was that since Davis had to be tried in Virginia they couldn’t get a jury that would convict him no matter what the evidence or the law.

    There were a number of rulings on secession and on issues related to secession, such as:

    In White v. Hart the Court also ruled secession was unconstitutional. “The national Constitution was, as its preamble recites, ordained and established by the people of the United States. It created not a confederacy of states, but a government of individuals. It assumed that the government and the Union which it created, and the states which were incorporated into the Union, would be indestructible and perpetual, and as far as human means could accomplish such a work, it intended to make them so. The government of the nation and the government of the states are each alike absolute and independent of each other in their respective spheres of action, but the former is as much a part of the government of the people of each state, and as much entitled to their allegiance and obedience as their own local state governments — ‘the Constitution of the United States and the laws made in pursuance thereof,’ being in all cases where they apply, the supreme law of the land. For all the purposes of the national government, the people of the United States are an integral, and not a composite mass, and their unity and identity, in this view of the subject, are not affected by their segregation by state lines for the purposes of state government and local administration. Considered in this connection, the states are organisms for the performance of their appropriate functions in the vital system of the larger polity, of which, in this aspect of the subject, they form a part, and which would perish if they were all stricken from existence or ceased to perform their allotted work. The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence. The late rebellion was without any element of right or sanction of law. The duration and magnitude of the war did not change its character. In some respects it was not unlike the insurrection of a county or other municipal subdivision of territory against the state to which it belongs. In such cases, the state has inherently the right to use all the means necessary to put down the resistance to its authority and restore peace, order and obedience to law. If need be, it has the right also to call on the government of the Union for the requisite aid to that end. Whatever precautionary or penal measures the state may take when the insurrection is suppressed, the proposition would be a strange one to maintain that while it lasted, the county was not a part of the state, and hence was absolved from the duties, liabilities, and restrictions which would have been incumbent upon it if it had remained in its normal condition and relations. The power exercised in putting down the late rebellion is given expressly by the Constitution to Congress. That body made the laws, and the President executed them. The granted power carried with it not only the right to use the requisite means, but it reached further and carried with it also authority to guard against the renewal of the conflict and to remedy the evils arising from it insofar as that could be effected by appropriate legislation. At no time were the rebellious states out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected, and remained the same. A citizen is still a citizen, though guilty of crime and visited with punishment. His political rights may be put in abeyance or forfeited. The result depends upon the rule, as defined in the law, of the sovereign against whom he has offended. If he lose his rights, he escapes none of his disabilities and liabilities which before subsisted. Certainly he can have no new rights or immunities arising from his crime. These analogies of the county and the citizen are not inapplicable, by way of illustration, to the condition of the rebel states during their rebellion. The legislation of Congress shows that these were the views entertained by that department of the government. In the several acts admitting new states, the same formula substantially is used in all cases. It is that the state named ‘shall be and is hereby declared to be one of the United States of America, and is hereby admitted into the Union, upon an equal footing with the original states, in all respects whatsoever.’ ” [80 US 646, 650-652]

    In Thorington v. Smith the Court said, “It cannot be questioned that the Confederate notes were issued in furtherance of an unlawful attempt to overthrow the government of the United States, by insurrectionary force.” [75 US 1, 7]

    In Lamar v. Micou, the Court ruled, “The so-called Confederate government was in no sense a lawful government, but was a mere government of force, having its origin and foundation in rebellion against the United States.” [112 US 452. 476]

    In Hanauer v. Doane, the Supreme Court said, “We have already decided in the case of Texas v. White that a contract made in aid of the late rebellion or in furtherance and support thereof is void. The same doctrine has been laid down in most of the circuits and in many of the state courts, and must be regarded as the settled law of the land. Any contract tinctured with the vice of giving aid and support to the rebellion can receive no countenance or sanction from the courts of the country.” [79 US 342, 345]

    In Hickman v. Jones, the Court said, “The rebellion out of which the war grew was without any legal sanction. In the eye of the law, it had the same properties as if it had been the insurrection of a county or smaller municipal territory against the state to which it belonged. The proportions and duration of the struggle did not affect its character. Nor was there a rebel government de facto in such a sense as to give any legal efficacy to its acts. It was not recognized by the national nor by any foreign government. It was not at any time in possession of the capital of the nation. It did not for a moment displace the rightful government. That government was always in existence, always in the regular discharge of its functions, and constantly exercising all its military power to put down the resistance to its authority in the insurrectionary states. The union of the states, for all the purposes of the Constitution, is as perfect and indissoluble as the union of the integral parts of the states themselves, and nothing but revolutionary violence can in either case destroy the ties which hold the parts together. For the sake of humanity, certain belligerent rights were conceded to the insurgents in arms. But the recognition did not extend to the pretended government of the Confederacy. The intercourse was confined to its military authorities. In no instance was there intercourse otherwise than of this character. The rebellion was simply an armed resistance to the rightful authority of the sovereign.” [76 US 197, 200]

    In the case of Keppel v. Petersburg Railroad Company, a case in the Federal Court for the District of Virginia, the Federal District Court ruling was that the confederacy was unlawful. [14 Fed Cas. 357, 371]

    In United States v. Stark, et al, another Federal case, Federal Judge William B. Woods said, “The Confederate States were not a sovereignty; its inhabitants did not owe it allegiance, were not bound by its laws. On the contrary, the authority of the United States extended over them at all times. Their duty of allegiance and obedience to its laws was continuous and unbroken. All the laws of the United States, the act levying duties on imports included, were in force at all times and in all places within the territory of the United States, as much in Savannah as in New York; and all the citizens of the United States, whether within or without the insurrectionary districts, owed them obedience. If, as held by Mr. Chief Justice Chase, the laws of the United States against treason were in force over the inhabitants of the insurgent states, clearly the revenue laws were also in force.” [27 Fed. Cas. 1293, 1295]

    In Shortridge, et al. v. Macon, a Federal case, Chief Justice Salmon P. Chase said there is no doubt North Carolina claimed its connection to the United States was severed, and there is no doubt they claimed to have joined another country and joined a war against the United States, and he said there isn’t any doubt the practical relations with the United States were suspended. But, according to Chase, “these acts did not effect, even for a moment, the separation of North Carolina from the Union, any more than the acts of an individual who commits grave offenses against the state by resisting its officers and defying its authority, separate him from the state. Such acts may subject the offender even to outlawry, but can discharge him from no duty and can relieve him from no responsibility.” [22 Fed. Cas. 20, 21]Chase next says in no uncertain terms that the confederates were traitors. “The national constitution declares that ‘treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.’ The word ‘only’ was used to exclude from the criminal jurisprudence of the new republic the odious doctrines of constructive treason. Its use, however, while limiting the definition to plain overt acts, brings these acts into conspicuous relief as being always and in essence treasonable. War, therefore, levied against the United States by citizens of the republic, under the pretended authority of the new state government of North Carolina, or of the so-called Confederate government which assumed the title of the ‘Confederate States,’ was treason against the United States.” [22 Fed. Cas. 20, 21]

    Chase says those who claim that the act of secession made it impossible for the confederates to have committed treason against the United States are dead wrong. “It has been supposed, and by some strenuously maintained, that the North Carolina ordinance of 1861, which purported to repeal the North Carolina ordinance of 1789, by which the constitution of the United States was ratified, and to repeal also all subsequent acts by which the assent of North Carolina was given to amendments of the constitution,—did in fact repeal that ordinance and those acts, and thereby absolved the people of the state from all obligations as citizens of the United States, and, made it impossible to commit treason by levying war against the national government. No elaborate discussion of the theoretical question thus presented seems now to be necessary. The question as a practical one is at rest, and is not likely to be revived. It is enough to say here that, in our judgment, the answer which it has received from events is that which the soundest construction of the constitution warrants and requires.” [22 Fed. Cas. 20, 21]

    Chase also addresses those who wrongly think lack of convictions for treason means no one committed treason. “It is also true, that when war ceased, and the authority of the regular government is fully re-established, the penalties of violated law are seldom inflicted upon many. Wise governments never forget that the criminality of individuals is not always or often equal that of the acts committed by the organization with which they are connected. Many are carried into rebellion by sincere though mistaken convictions; or hurried along by excitements due to social and state sympathies, and even by the compulsion of a public opinion not their own. When the strife of arms is over, and such governments, therefore, exercising still their political discretion, address themselves mainly to the work of conciliation and restoration, and exert the prerogative of mercy, rather than that of justice, complete remission is usually extended to large classes by amnesty or other exercise of legislative or executive authority, and individuals not included in these classes, with some exceptions of the greatest offenders, are absolved by pardon either absolutely or upon conditions prescribed by the government. These principles, common to all civilized nations, are those which regulated the action of the government of the United States during the war of the rebellion, and have regulated its actions since rebellion laid down its arms. In some respects the forbearance and liberality of the nation exceed all example. While hostilities were yet flagrant, one act of congress practically abolished the death penalty for treason subsequently committed, and another provided a mode in which citizens of rebel states, maintaining a loyal adhesion to the Union, could recover after war the value of their captured or abandoned property. The national government has steadily sought to facilitate restoration with adequate guaranties of union, order, and equal rights. On no occasion, however, and by no act, have the United States ever renounced their constitutional jurisdiction over the whole territory or over all the citizens of the republic, or conceded to citizens in arms against their country the character of alien enemies, or admitted the existence of any government de facto, hostile to itself within the boundaries of the Union. In the Prize Cases the supreme court simply assented the right of the United States to treat the insurgents as belligerents, and to claim from foreign nations the performance of neutral duties under the penalties known to international law. These decisions recognized, also, the fact of the exercise and concession of belligerent rights, and affirmed, as a necessary consequence, the proposition that during the war all the inhabitants of the country controlled by the rebellion, and all the inhabitants of the country loyal to the Union, were enemies reciprocally each of the other. But there is nothing in that opinion which gives countenance to the doctrine which counsel endeavor to deduce from it, that the insurgent states, by the act of rebellion, and by levying war against the nation, became foreign states, and their inhabitants alien enemies. This proposition being denied, it must result that in compelling debtors to pay to receivers, for the support of the rebellion, debts due to any citizen of the United States, the insurgent authorities committed an illegal violence, by which no obligation of debtors to creditors could be cancelled or in any respect affected.” [22 Fed. Cas. 20, 22]

    In the Federal case of United States v. Morrison, Chase wrote, “No relief could arise under any authority of the Confederate government. That government was founded in an attempt to throw off the authority of the United States and establish an independent government. If that attempt had succeeded, all transactions authorized by the Confederate government must doubtless have been recognized as lawful. But in the absence of success, that government was itself unlawful. Its whole existence was a continued rebellion against the lawful government of the United States. No one could be protected in any action by the sanction of its authority.” [26 Fed. Cas. 1349, 1350]

    In his charge to the jury in the Federal case of United States v. Huger, et al., Judge George S. Bryan said, “I am asked to rule thirdly that said Confederate States or government of which John A. Reagan was an officer or agent, was an unlawful combination of divers persons, citizens of the United States, engaged in unlawful insurrection and rebellion against the government of the same, and within the territory thereof, unlawfully usurping the powers of government, and as such it continued to be unrecognized as having any lawful existence till suppressed by the military power of the United States, hence neither said Confederate government nor its officers or agents could originate any legal action or issue any order which the defendant, Alfred Huger, was bound to obey. I instruct you that, in so far as that said Confederate States was an unlawful combination of divers persons, citizens of the United States, engaged in an unlawful insurrection and rebellion against the government of the same, and within the territory thereof unlawfully usurping the powers of government, and as such, it continued to be unrecognized as having any lawful existence, till suppressed by the military power of the United States, etc., I give the instruction but do not give the conclusion, that is, that the officers or agents of the Confederate government could not issue any order which the defendant, Alfred Huger, was bound to respect. I instruct you, the United States having conceded to the Confederate States (so-called) the authority of a belligerent, the power incident to the authority of a belligerent, the power incident to the authority of a belligerent was conceded to the Confederate States, and they had such right to give an order, which it was not possible for the postmaster or assistant postmaster here to dispute. They had the authority of a belligerent, and it was not within the competency of the postmaster to dispute the regular exercise of that authority.” [26 Fed. Cas. 412, 413]

    • Randall Flynn says:

      That’s quite a litany of US Federal opinions and subsequent nationalistic rationalizations. Why aren’t the dates included with those citations? I’ve worked in law firms in NC & VA for 25 years. Dates of legal opinions actually matter! Are these all unanimous opinions? If not, where are the dissenting? If Jeff Davis was really an ongoing citizen of the US during the entirety of the Civil War, on what premise could the US legally imprison him for 2 years – without a trial? If the most recent vote by Britain to leave the EU is “secession”, would it be OK for the rest of the EU to enforce their union militarily (which Britain originally agreed to in 1973)? Why not? If I got married tomorrow and recited at the ceremony “till death do us part” – isn’t that a perpetual union? Does US law allow the parties to legally break that union before they die?? To say something is “perpetual” – is quite simply irrational. Humans (and their governments) are not perpetual. How can the following statement possibly be true – “The government of the nation and the government of the states are each alike absolute and independent of each other”? Makes no sense! Article 7 of the US constitution says “The Ratification of the Conventions of NINE STATES, shall be sufficient for the Establishment of this Constitution BETWEEN the STATES so ratifying the Same.” To be effective, it required ratification by a majority of STATES, not individuals. The “illegality of secession” premise was simply the most palatable way for the US government during (and after) the war to justify the military coercion and repression required to quash the right to self-determination.

    • Nathan Hall says:

      Great summary of related case law. It also touches on the distinction – sometimes not well understood – of the Confederacy possessing legal status as a “belligerent” during the conflict while not being recognized as a nation. That’s a nuanced distinction worth it’s own article.

      And the subject of the inherent difficulties of a potential Davis jury interests me a lot, as well. It had to be a Virginia jury, and the pool of potential jurors could not, according to the law at the time, include former Confederates. This left a pool of potential jurors that would include formerly enslaved and free African Americans, and a very small contingent of Richmonders who could pass muster according to the “Ironclad Oath.” That is, they had to be able to offer reliable certification that they had never borne arms for or even supported the Confederacy. As a result, I notice the jury pool includes at least two men who were active in the Union espionage agents’ network during the war! (including the brother of Elizabeth Van Lew, head of the Union spy network) Davis, for his part, decried the potential of being judged by what he termed a “mongrel jury.” Seems like both sides had good cause to be concerned with the unpredictability that a jury trial would bring.

      • Al Mackey says:

        While prospective jurors would be required to swear they had always been loyal to the United States, there was no way to exclude confederate sympathizers who would falsely swear they had been loyal from being on the jury and refusing to vote to convict.

        The head lawyer of the Davis defense team, Charles O’Conor, said publicly he wanted to use the trial to prove the constitutionality of secession, but as Professor Cynthia Nicoletti shows in her recent book, Secession on Trial, this was a huge bluff. He had no intention of doing so, as his private letters show conclusively. In fact, O’Conor didn’t want any trial at all. Davis had the public persona of welcoming a trial, but he was apprised of O’Conor’s strategy and didn’t object to it. Davis also really didn’t want a trial.

        Chase’s ruling in Shortidge v. Macon petrified the Davis defense team because it rejected the notion that a state’s secession carried its citizens with it. That, incidentally, would have been Robert E. Lee’s defense if his case had come to trial.

        With the ratification of the 14th Amendment, Chase and Davis’s defense team saw a way out. Because the 14th Amendment contained disabilities for former confederate officials who had taken an oath of office to the United States, which included former Army officer, former Secretary of War, and former Senator Jefferson Davis, Davis’s lawyers argued he had already been punished for treason and putting him on trial now would be double jeopardy and thus unconstitutional. Chase agreed, but the other judge presiding, Federal Judge Underwood, disagreed. The two filed a petition to the Supreme Court over their disagreement. Before it came before the Supreme Court Andrew Johnson issued his December, 1868 Proclamation of Amnesty and Pardon applicable to all former confederates, which included Davis, Lee, et al. This rendered further prosecution moot, and the case was nolle prosequed.

      • Nathan Hall says:

        Nicoletti’s book is a great read and an exhaustive exploration of the Davis prosecution. I recommend it to anyone who’s interested in getting the full picture of this aspect of secession and the courts.

        The idea that Davis’s lawyer was bluffing is definitely persuasive. Nicoletti effectively shows that Davis’s counsel was primarily concerned with getting his client released, trial or no, rather than in proving a point about secession (Good trait for a lawyer, after all).

        I’ve always thought the 14th amendment ‘double jeopardy’ argument was pretty flimsy, but unquestionably Chase was willing to accept it. Chase’s legal reasoning (and political aspirations) are examined in Nicoletti, too, and it becomes significant that of the later secession cases before the court, it’s the Bruffy case – after Chase’s death – that allow secession’s merits to be presented and expounded upon in greater detail.

      • Al Mackey says:

        The other recently published book on the Davis case is Robert Icenhauer-Ramirez’s Treason on Trial. IMO, not as good as the Nicoletti book, but it has some great research and insights as well. He writes, “Jefferson Davis was not tried because the leaders of the United States [Andrew Johnson excepted] were noble principled men not bent on vengeance. That group of northern men and women looked at the Confederate leadership and saw unvarnished traitors. They harbored no doubt that Davis deserved to hang for the treason he had committed. But in their eyes, the United States was imbued with an exceptionalism in many regards, not least of which was the penchant for mercy, when societies in other nations would have sought revenge. … The failure to bring Davis to trial for treason did not arise from a Union concern that the results of battle would be overturned by the courts. By the blood drawn by the sword, secession had been rendered unconstitutional once and for all. The failure to bring him to trial did not proceed from a fear that he would be acquitted, although there was that concern. Until the very end of the time that he faced indictment, Union officials were concerned about the possibility of an acquittal but not cowed by it. Andrew Johnson never wavered in his belief that Davis was guilty of treason and should be punished for it. Nevertheless, he consistently placed his trust in the subordinates whom he believed to be experts in the field of law and deferred to their recommendations regarding every aspect of the prosecution.” [pp. 297-298]

  2. Mike Maxwell says:

    Doug and Nathan
    Excellent conclusion to an outstanding discussion! Plenty of food for thought; with substantial amounts of unexplored history just waiting for the right group to investigate.
    Al Mackey has already presented a thorough explanation of “Why no jury trial,” so…
    As regards the Capture of President Jefferson Davis, part of the local incentive involved a claim that “Davis was fleeing with a vast amount of gold and silver bullion.” Federal soldiers struggled against each other to become “the regiment that caught Jeff Davis (and got that bullion.)” There was also the potential for a Treason trial. And there was the unanticipated, show-stopping assassination of President Lincoln, occurring after the surrender of Lee’s Army of Northern Virginia; after President Lincoln had visited the abandoned Confederate Capital at Richmond. Once it was revealed that Lincoln’s death was the result of a Conspiracy; and there were connections to a Confederate Secret Service operation in Canada… The obvious questions: “How high up the CSA hierarchy did Booth have to go for authorization?” and “Was Jefferson Davis the authorizing authority (or knowledgeable to the degree that he could have stopped the operation ?”)
    When the Military Tribunal opened in May 1865 charged with trying the Lincoln Assassination Conspirators, evidence was presented before that tribunal implicating President Davis. But, perjured testimony, and insufficient evidence led to the case against Davis and officers in his cabinet being quietly abandoned.
    After the killing of Booth, the hanging of the four Lincoln Conspirators, and the execution of the notorious prison warden, Wirz, it appears the Public demand for blood was satiated. Davis was not turned into a martyr. And the healing of America began…
    Mike Maxwell

  3. nygiant1952 says:

    It is ALWAYS refreshing to see a comment by Al Mackey!!

  4. Bob Ruth says:

    Great post by Al Mackey. You obviously did a lot of research, although Randall Flynn doesn’t think it was exhaustive enough.

    My suggestion to Randall: Since you’ve worked in law firms for “25 years,” why don’t you research the opinions and provide us with all the info you claim Al didn’t provide? Randall, with your vast knowledge of the law, researching all those opinions should be an easy task for you.

    • Al Mackey says:

      I don’t think he read what I posted, as it’s easy to see when the rulings happened by simply reading. He probably wants to make the specious argument that because rulings came after the Civil War they were somehow ex post facto laws, which as anyone who knows anything about the Supreme Court knows, is a false argument. The Supreme Court rules on what the law meant at the time of the action, meaning their rulings, while necessarily coming after the action, are not ex post facto laws.

      As you point out, if, as he claimed, he worked in law firms for 25 years, he must know where to find the rulings. In fact, my 8th Grade students, using Google, could find the rulings today if they wanted to do so.

    • John Foskett says:

      You’ll likely get “crickets” in answer to that challenge. How on earth “working in law firms for 25 years” qualifies anybody – without much more- to take on Al’s analysis defies explanation. Randall’s post contains several signals that he lacks the skillset for the challenge. I’ll leave it at that.

      • Randall Flynn says:

        I’d like to thank Mr. Denney for (at least) hearing me out and seeing some validity to my rhetorical arguments – instead of impugning that my legal experience counts for nothing.There was NO response to even one of the questions that I posed. But since I believe secession (i.e., self-determination) is legal, I must not have the mental skillset to understand or lucidly reply. I’m certainly not writing a legal brief (as it appears Mr. Mackey is attempting). And I would not have chimed in on the discussion – if I preferred to hang out with the “crickets”.
        He who presents supporting references in an argument – is also the one responsible for properly citing those references to back up his own claims. That’s not my job! Would I go in front of a judge with case law citations to support my argument – and then tell the judge that he should consult with opposing counsel if he has any questions about my case references?!
        As a teacher, I would hope Mr. Mackey would attempt to present both sides fairly to his students – and then encourage them to decide for themselves which argument is most worthy to support. And yes, I definitely read your earlier posting (which prompted my reply). I will say that Mr. Mackey acknowledged exactly the point I was initially trying to make – that the legal references he presented were all “after the fact”. Hard to go wrong there – if you’re an opponent of secession.
        What’s much more important is how did Americans regard the concept of secession before !861? Again, the founding fathers explicitly required ratification by majority of STATES. An agreement between parties (w/o a specific term) is considered “at-will”. That English common law concept predates the US Constitution by a few hundred years. The real quandray for Lincoln supporters is the secession question prior to the Civil War – not after! If there’s even a possibility (at that point) that Lincoln was wrong about a “perpetual union” – then someone would have a lot of explaining to do.

  5. Robert L Denney says:

    I have thoroughly enjoyed this topic, and the opinions and facts expressed by the participants. I am neither a historian nor a lawyer. As I reflect on all 5 sessions, I feel like a juror who has been presented a compelling case BY THE PROSECUTION that the Southern States were traitors, and that secession was illegal. As Mr. Crenshaw states: “any appeal to the legal process of secession is bound by the precedents set by both the war and the courts”. This is no doubt true, but I have to remind myself that many of these facts came from what appear to be post bellum courts, and certainly from the Union viewpoint. Having prevailed on the field of battle surely makes the case even stronger.

    Now comes Mr. Flynn who in one post has presented a short, but concise statement for the DEFENSE. If the burden of proof is “guilty beyond a reasonable doubt”, then Mr. Flynn has indeed put doubt in my mind in the prosecution’s case. I suspect there are many more readers of these sessions that identify with Mr. Flynn, but who don’t want to join the fray.

    Is secession settled? As long as we have an omnipresent Federal Government, and free people who value self-determination, I don’t think so.

    • Nathan Hall says:

      I appreciate your summation of how you perceived both sides of the discussion now that we’re concluding. Your closing statement is a powerful one, and I think very relevant. The question of whether secession is “settled,” as you point out, does not rule out the possibility of being revisited by ‘free people who value self-determination.’

      The Supreme Court, post war, declared that the issue is dead. But one might recall that the court upheld the constitutionality of slavery consistently until the 1860s, then readily accepted its demise as part in a changing culture. And that the court declared the constitutionality of segregation in Plessy v. Ferguson in 1896, only to have a later court overturn it in Brown v. Board in 1954. The relevant observation being that a Supreme Court ruling only possesses legitimacy as long as its necessity is persuasive to the society at large.

      When I have these discussions in person, I often close them with the observation that, in some sense, you are presently as free to attempt secession as you ever were.
      If one feels they are intolerably oppressed, they still possess the inalienable right to revolution as discussed in part one. If one is comfortable calling oneself a “revolutionary,” then they need not appeal to case law or precedent in order to assert the right to self government as they care to define it.
      If one would prefer to change their form of government by defining it as being altered through legal and constitutional means, the odds are stacked against them in terms of the war’s outcome and the body of postwar law that now expressly forbids it. But, like the court specified in Williams v. Bruffy, if you attempt it and you succeed, then, congratulations, you have successfully seceded (though essentially by accomplishing an armed “revolution” by another name).

  6. Sir says:

    George Washington was a traitor. The only reason that you might not view him as one is that you support his actions and the rebels won the war. Might does make right, but Washington did commit treason as defined by the laws of the time. Court decisions determining that secession was unconstitutional are, indeed, ex post facto and self-justifying. Imagining that the S. Ct. would rule that secession had been constitutional, after the fact, is laughable and ridiculous (calling Justice Homes). Truly only a child’s brain could imagine such an outcome. Believing that the S. Court does not impose its own political will and social view on the law, regardless of the actual text is the very essence of naive te.

  7. Mike Maxwell says:

    Congressman William S. Holman (D – IND) made a speech before U.S. House on 16 January 1861 which was subsequently printed and made available as pamphlet of 24 pages. When I stumbled upon this today, I almost did not read it, because of the title: “Right of Secession – the Impending Crisis” (because I believed it was a promotion of secession; and I already possess a vast collection of pro-secession material.) “Do not judge a book by its cover.” As an apt conclusion to my contributions to this discussion, here is the link at HathiTrust:

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  9. Caldwell says:

    lt is an irrefutable historical fact that Jefferson Davis, upon his arrest, was not charged with the crime of “secession” against the United States. And that’s because secession was not a crime. There simply was no federal law prohibiting its exercise; absolutely none. In fact, it wasn’t even a misdemeanor for which one could be ticketed, as one, for example, could be ticketed for jaywalking today. Conversely, treason against the United States, with which Jefferson Davis was charged, is an entirely different matter. It is a grave constitutional crime with explicitly defined terms, and anyone who is guilty of it may lawfully be put to death. So the two acts, that of secession and that of treason, are very different things.

    Therefore, as we know with absolute certitude that secession was not (and is not) a crime, and as we know with equal certitude that treason was (and is) a crime, it is only necessary to look to the Constitution to determine if secession is prohibited as treason is. So, does the Constitution, in fact, explicitly prohibit secession and allow Congress to provide for its punishment, as it does in the case of treason? No, it does not; it most certainly does not. Is secession one of the enumerated prohibitions against the states within Article I, section 10? No, it is not; it most certainly is not. Does Article VII proclaim that upon ratification, no state shall ever be permitted to withdraw from the voluntary political union it has joined? No, it does not; it most certainly does not. Does Article IV grant the authority to Congress to restrain and prevent states from withdrawing from the union, as it grants them authority to admit states into the union? No, it does not; it most certainly does not. In fact, does the Constitution mention the word “secession”, even once, throughout the entirety of its approximately 4,500 carefully chosen words? No, it does not, it most certainly does not.

    Given all this (and it is really just the tip of the iceberg) it is clear why Davis was never even tried, much less convicted, of any crime. Secession was perfectly lawful in 1860, and it is perfectly lawful now.

    • Mike Maxwell says:

      The first secession in the United States of which I am aware is “the retro-cession of the Virginia portion of District of Columbia back to Virginia” in March 1847. This was accomplished amicably, through the Courts and the Congress and President Polk’s Proclamation… after the efforts of forty-three years.
      Obviously, the Cotton States did not have 43 years to spare; there was no serious effort to part peacefully, to push the claim for disunion through the Courts, especially after the United States Flag was fired upon 9 January 1861 (only three weeks after Charleston claimed “South Carolina has seceded.”) Once that act of aggression occurred, secession had morphed into armed conflict; and it was only “Northern forbearance” that prevented the war occurring three months earlier than it actually commenced. [Is armed conflict by enemies, foreign or domestic, addressed in the Constitution?]
      As for Jefferson Davis: he WAS tried… as a co-conspirator in the Assassination of Abraham Lincoln. Due to insufficient evidence and perjured testimony, the case against Davis and the CSA “Canadian Cabinet” was dropped; and due to Northern forbearance, no additional Court proceedings were initiated against the former Confederate President (although Jefferson Davis was held in detention, pending determination of that ultimate decision.)
      [References upon request.]

  10. Caldwell says:

    No, Jefferson Davis WAS NEVER tried as a co-conspirator in the Lincoln case. Never.

    • Mike Maxwell says:

      Lew Wallace: an Autobiography vol.2 page 848: “The prisoners were charged with co-operating with John Wilkes Booth, Jefferson Davis, John Surratt and others to murder Abraham Lincoln.”
      The Assassination of President Lincoln and the Trial of the Conspirators (Benn Pitman) 1865 pages 46 – 64 “Jefferson Davis and the Assassination.” [Several pages of testimony recorded by stenographer Benn Pitman of witnesses with knowledge of Jefferson Davis, Jacob Thompson, Judah Benjamin and others, during May and early June in effort to compile case against Confederate leadership.] Page 18: lists Jefferson Davis on Charge Sheet as co-conspirator. Pages 24 – 37 also contains statements of witnesses in regard to Jefferson Davis and other Confederate Government leaders.
      The Lincoln Assassination Encyclopedia (Edward Steers, Jr.) 2010 page 150: “Conspirators – In addition to the eight conspirators in custody, the Government charged several individuals not in custody as co-conspirators of Booth: Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, and George Young. [Also in Benn Pitman transcript, page 18.]” Page 548: “During the trial a total of 366 witnesses gave testimony. [Many of these, in particular Charles A. Dunham (aka Sanford Conover), Richard Montgomery and James Merritt were called to give testimony regarding Jefferson Davis – page 187.]”

  11. Caldswell says:

    At no time ever, was Jefferson Davis tried as a conspirator for the murder of Abraham Lincoln. At no time ever, was Jefferson Davis even charged as a conspirator with the murder of Abraham Lincoln. Below is a link from the June, 1915, edition of the Yale Law Journal. It has a copy of the indictment for treason against Davis, but dismisses, emphatically, the idea that he was charged with any crime connected with the assassination of Abraham Lincoln.

    You only need to read from the very bottom of page 2 (page 670 in the journal itself) until page 672.

    • Mike Maxwell says:

      The Conspiracy Trial (Benjamin Perley Poore) 1865. Page 4: “…evidence [has been] obtained that these horrible crimes were executed in commission of a conspiracy deliberately planned and set on foot by rebels…” – Edwin Stanton. Page 4: “It was not long until the proofs of a conspiracy, organized at Richmond and perfected in Canada, were overwhelming.” – Poore. Page 7: Proclamation of President Andrew Johnson (dated 2 May 1865), affirming “the involvement of Jefferson Davis in the conspiracy to murder President Lincoln” and offering a reward of $100,000 for his arrest. Page 14: Charge One lists the crimes purportedly committed by prisoners then in attendance (O’Laughlin, Atzerodt, Herold, et al) in combination with other persons yet at large (George N. Sanders, Beverly Tucker, John Surratt and JEFFERSON DAVIS among this group specifically named.) Page 19: “Before adjourning [on May 10] the Commission agreed upon the Rules by which it would be governed. It was determined on to exclude all persons except those officially engaged in the trials, and to swear them to secrecy… This action of secrecy was based upon the fact that the developments of the trial would implicate many parties not under arrest, who might escape should publicity be given to the proceedings.” – Poore. “The Trial of the Lincoln Conspirators” paragraph titled, “Confederate Terrorism on Trial” – “The War Department [and Edwin Stanton] saw the Trial as an opportunity to prosecute not only the eight charged conspirators, but also the already-dead Booth, and Jefferson Davis, and the Confederate Secret Service.” [Next dozen paragraphs summarize witness testimony presented at the Tribunal in attempt to connect Jefferson Davis to Confederate terror plots and the Lincoln Assassination.]

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