Confederate Legislators Debated Secession … from the Confederacy!
The Confederacy is remembered for two issues: slavery and secession. Enslavement was clearly codified in the Confederate Constitution, but the question of secession was surprisingly left vague. That does not mean it was not debated, and Confederate leadership actually examined the concept of secession from their own government.
In January 1863 news reached London of a secret plot to “induce Texas to secede from the Southern Confederacy.” It was quickly dismissed as hearsay, but one year later, secession became political ammunition in North Carolina’s gubernatorial race. Incumbent – and ultimate victor – Zebulon Vance seemed murky regarding the concept of North Carolina potentially leaving the Confederacy, speaking on the matter in different viewpoints depending on where he campaigned. In one speech in Wilkesboro, Vance proclaimed that if North Carolina seceded, he would “not go with his state,” while in another in Fayetteville Vance conjectured “if the fortunes of war turn against us,” North Carolina’s secession “may become necessary.” In other speeches, Vance pinned such sentiments on opposition candidate William Holden as the man who might facilitate North Carolina’s secession from the Confederacy.
Could Confederate states secede? Seems like a moot question. Since the Confederacy formed via states seceding from the United States, it seems such power was inherent. But if secession was an unstated right of states, was it incontestable? Article VI, clause 6 of the Confederacy’s constitution copies the U.S. Tenth Amendment, stating “The powers not delegated to the Confederate States by the Constitution, not prohibited by it to the States, are reserved to the States, respectively, or to the people therof.” Perhaps this clause provided the protection and authorization of a state wishing to secede, as is it not forbidden in that constitution and thus became a reserved power of states. But if this same reserved power claim could be implied from the U.S. Constitution, why did Abraham Lincoln oppose secession of slaveholding states?
Another part of the Confederate Constitution provides a counter. Article IV, clause 3 states the Confederacy “may acquire new territory,” outlines how territorial governments should organize, and notes that enslavement “shall be recognized” by the territory’s government.” Territory was added, in the form of Virginia, North Carolina, Arkansas, Tennessee, and Arizona, but nothing in that clause claims the Confederacy could detach or lose territory.
One final part of the Confederate Constitution hints secession is implied: the preamble. The Confederate Constitution’s preamble denotes each state joined the new country “acting in its sovereignty and independent character.” Case closed, but perhaps not quite, for the preamble also declares those sovereign states are uniting to “form a permanent federal government.” Could a permanent new federal government be dissolved through secession, and would a state seceding actually dissolve said government? The preamble certainly adds weight to an implied right of secession.
An overt statement in the Confederate Constitution would certainly provide clarity. The word secede does not appear in the document, but it almost did. The Confederate Constitution’s framers debated settling the ambiguity. On March 7, 1861, Georgian Benjamin H. Hill proposed a new article to the draft Confederate Constitution. Three clauses in Section 2 of that proposed article sought to clarify secession:
1. States wishing “to withdraw from this Confederation” needed to call a convention of citizens to formally explain “the causes of such desire to withdraw.”
2. If Congress cannot address those causes and desires to secede, it “shall arrange with such State an equitable division of the public property, and a peaceable withdrawal from the Confederation.”
3. States leaving must “pay a due proportion of the public debt existing at the time of such withdrawal” as well as “expenditures made, or liabilities incurred by the Confederate States, in acquiring, securing, fortifying or defending the territory or jurisdiction of such State.”
Hill’s proposal was immediately amended and reworded by James Chesnut (noted diarist Mary Chesnut’s husband): “The right of a State to secede from the Confederacy shall not be denied. And whenever any State, through a convention of its people, shall dissolve the connection between it and its confederates, it shall be the duty of the President to withdraw all forces from within the territorial limits of such State, and permit it peacefully to withdraw.”
The Hill-Chesnut proposal was ordered printed but was never debated by the proto-Confederate Congress again. Four days later, the Confederate Constitution was approved without the article clarifying secession. Perhaps it was excluded, as Confederate Constitutional scholar Marshall DeRosa explains, because expressly denoting secession from the Confederacy would itself admit that the U.S. Constitution, which Confederates claim implied the right, thus forbade it.
Clarifying whether Confederate states could secede reemerged in 1863 by Georgia Senator Herschel Johnson. On February 5, Johnson introduced Senate Bill 33, proposing a two-part constitutional amendment. It provided an avenue for a redress of grievances by states against perceived unconstitutional federal action by allowing states to form conventions to declare Congressional action unconstitutional. If done, Congress would then “call a Convention of the States … and if not affirmed by two-thirds of said conventions, the vote to be taken by States, it shall be void.” The second part of the proposal stated that if states worried about unconstitutional action by Congress could not be redressed satisfactorily, “and it determine to secede from the Confederacy, it shall do so in peace, but shall be entitled to its pro rata share of the public property and liable for its pro rata share of the public debt to be determined and settled by negotiation.”
Word of Johnson’s proposed amendment immediately hit Richmond’s Times-Dispatch, but Johnson withdrew the bill from consideration on February 7. Many reporters editorialized the proposed amendment might “prove one of the best guarantees for the permanency of the Confederate government,” so there was rampant speculation about the amendment’s withdrawal. Savannah’s Republican and Charleston’s Mercury were heavily critical, claiming the amendment was “superfluous.”
Another perusal of the Confederate Constitution explains the amendment’s rapid withdrawal. It clarifies the new country’s amendment process: “Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a convention of all the States, to take into consideration such amendments … and should any of the proposed amendments to the Constitution be agreed on by the said convention, voting by States, and the same be ratified by the Legislatures of two-thirds of the several States, or by conventions in two-thirds thereof … they shall thenceforward form a part of this Constitution.”
As it turns out, Johnson had no right to propose a Confederate constitutional amendment, something the senator readily admitted in his memoir and the Charleston Mercury criticized him on. “At the time I introduced the bill,” Johnson acknowledged, “not having examined especially the point, that the Congress had the right, as that of the United States has, to propose amendments to the Confederate Constitution. But Mr. Yancy [Senator William L. Yancey] of Alabama called my attention to the change and hence, I withdrew my bill.” Johnson also penned a newspaper editorial admitting his ignorance of the very constitution he swore to protect, while defending his actions in pursuit of “good government, stable government, [and] enduring government.”
So twice Confederate legislative bodies examined the right to secede from the Confederacy and proposed codifying it in their constitution. Both proposals were abandoned. Ultimately the question of secession from the Confederacy was moot, as the country dissolved before this principle was ever tested. Thus, the question of whether Confederate states could secede from their new country will always remain heavily implied, but not explicitly confirmed.
 “America,” The Standard, London, United Kingdom, January 31, 1863.
 “Gov. Vance,” North Carolina Standard, Raleigh, NC, May 25, 1864.
 Richard E. Yates, “Governor Vance and the Peace Movement: Part II,” North Carolina Historical Review, Vol. 17, No. 2, 108.
 Constitution of the Confederate States of America, Q18613-Q18633, Alabama Department of Archives and History.
 March 7, 1861, Journal of the Provisional Congress of the Confederate States of America, Journal of the Congress of the Confederate States of America, 1861-1865, (Washington: Government Printing Office, 1904), Vol. 1, 877.
 Marshall L. DeRosa, The Confederate Constitution of 1861: An Inquiry into American Constitutionalism, (Columbia, MO: University of Missouri Press, 1991), 52-53.
 February 5, 1863 “Proceedings of the First Confederate Congress, Third Session in Part, January 19-March 19, 1863,” Southern Historical Society Papers, (Richmond, VA: Southern Historical Society, 1941), New Series, No. 10, Vol. 68, 60.
 “Confederate Congress,” Times-Dispatch, Richmond, VA, February 6, 1863; Ibid., 80.
 “Peaceable Secession,” Wilmington Journal, Wilmington, NC, February 26, 1863.
 “Senator Johnson and the Constitution,” Charleston Mercury, Charleston, SC, February 20, 1863.
 Constitution of the Confederate States of America, Alabama Department of Archives and History.
 Herschel Johnson, “From the Autobiography of Hershel V. Johnson,” American Historical Review, Vol. 30, No. 2, 331.
 Herschel Johnson, “Letter from Senator Johnson,” Daily Sun, Columbus, GA, February 26, 1863.
11 Responses to Confederate Legislators Debated Secession … from the Confederacy!
“But if this same reserved power claim could be implied from the U.S. Constitution, why did Abraham Lincoln oppose secession of slaveholding states?”
A useful and timely discussion. The Congressional Naming Commission’s report, in its Preface, says that Congress has decided that no Confederate deserves to be commemorated on any Department of Defense asset. One of the main reasons for that condemnation…sorry, conclusion is that Confederates fought against the United States and are therefore guilty of treason. This article is a useful reminder that people had, and still have, drastically different views of what the U.S. Constitution really means. Some questions can only be settled by force. By April of 1865, the Civil War had settled the question of where American citizens’ allegiances should lie—their nation or their state. But in April of 1861, when Americans were choosing which allegiances to follow into battle, the question hadn’t been settled.
In the Civil War period, the right of secession seemed to be based the the level of slaveownership. The states and districts in states with the most slaves and slave owners saw the right of secession most clearly. As the number of slaveowners and slaves declined, the right became rather blurry, and when you moved into the border slave states, quite difficult to discern, and when you crossed into a free state, utterly invisible.
The process of secession in the winter and spring of 1860-61, does not resemble any kind of legal process. The secessionists acted like revolutionaries. If they thought that “secession” was some sort of right, well luckily we had a panel of judges that did nothing but try to determine the meaning and uses of the Constitution. They should have asked them. We had a standing assembly of representatives from every section of the nation. Perhaps this nationally significant issue could have been debate and voted on there. But no. They appealed to the sword.
In the vein of Brexit, Texit is the obvious choice for Texas, but for North Carolina I’m finding Norexit and Northexit a little less satisfying, maybe Norcession?.
Very interesting. I can see how the Confederate states would not want to include an express guarantee of the right of secession and risk giving the USA an argument that the US Constitution thus implicitly forbade secession. However, the CSA Constitution did expressly protect slavery in multiple ways, giving the USA the same type of argument that the US Constitution thereby gave Congress the power to regulate slavery (e.g., in the territories).
Neil P. Chatelain
Thanks for this study IRT the “legality” of secession. It is also interesting to examine the Confederate Government response to the “secession” of West Virginia from the CSA; and the attempted secession of East Tennessee… which may be summed up as Might Makes Right.
The right of secession was never addressed, because, ..well, it is hard to argue against secession in a democratic society. Who will say today that Ukraine did not have the right to withdraw from the Russian federation? Today, as in 1861, we generally recognize the right of people to form their own country. It is ironic, though that a country – the CSA – formed on principles of secession could not find a way to address it in their Constitution. Even today, there is no law, no principle in U.S. law that forbids secession. Its just too complicated.
What is called “secession” in 1860 is in the words of Robert E. Lee, “simply revolution.” Now the word shouldn’t frighten us. After all the United States was formed by launching a revolution, and won independence from the British Empire by armed force, after a long war. The American Revolution was not a legal process, it was treason where the traitors won.
Now invoking the right to revolution, one needs to justify why such an extreme and violent step was necessary: the Declaration of Independence and other justifications for revolution. What was the justification for secession in 1860? Oh yeah…the unspeakably horrible one.
If some folks in 1860 thought that secession was part of the Constitution, most did not, and that question should be brought to the Supreme Court. And we should ask ourselves, if the Constitution has said, “by the way, no secession” overtly, would secession in 1860 taken place? The answer is, of course, yes, because the secessionists thought they had ample cause for revolution.
As an extension to my earlier response: Anyone who has read the Confederate Constitution knows that it is almost identical to the U.S. Constitution. The main differences: line item veto is given to the CSA President; the term of service of the CSA President is six years; the amendments enumerated in the U.S. Constitution are incorporated into the body (Articles) of the CSA Constitution. Therefore, any legality of secession to be found in the U.S. Constitution SHOULD be similarly found in the Confederate Constitution.
American Constitution expert, William Rawles, published a book in 1825 (revised 1828) in which he promotes the legality of “separation of a state” from the Union under certain conditions. Upon my own study of the Constitution, that “legal separation clause” is not defined. However, there is an accepted International Law that has existed since the time of the Roman Empire; and that accepted law was codified by French-speaking Swiss Emerich de Vattel in his 1758 work, “The Law of Nations.” George Washington is known to have read the English translation of de Vattel’s book. And “the Conduct of Civil War,” and the “Right of aggrieved citizens to engage in Rebellion against the State” are addressed pages 483- 487, with the bottom line appearing: “If one engages in rebellion, one had better win… or face repercussions.”
Great topic to delve into Neil. The State conventions on secession were definitely a legal process the state’s went through to secede with due process given to the state’s white citizenry.
The Confederacy is only “remembered for two issues: secession and slavery,” because historians driven more by political agenda than history have made it so. Therefore they create a very superficial and adolescent understanding of why the Confederacy was formed. It was an attempt to preserve the prevailing sentiment of the Founders that the States were sovereign, and that diversification of sovereignty protected the liberties of the people from a centralized tyranny.
Slavery was not “codified in the Confederate Constitution,” at least not in the sense the author of this article seems to suggest. Slavery was a matter for each sovereign State to decide, and therefore the CSA was NOT a slavocracy.
That the States were sovereign as stated from the get-go in the Preamble, is why there was no need to codify a right to secede in the Confederate Constitution. The very meaning of sovereignty is that a sovereign government has the power to act without needing any permission from another government. The 10th Amendment did indeed assert the sovereignty of the States. Even delegated powers to the general government, and prohibitions placed on the States, were the acts of sovereign States.
Dr. Marshall DeRosa is exactly right, and any mention of secession would be indeed superfluous. And the creation of a “permanent federal government” had nothing to do with a permanent union of confederated States.