Secession and the Constitution Revisited

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Edited.


"The Supreme Court never decided the question which was certified to it"- David K. Watson
The Yale Law Journal
Vol. 24, No. 8 (Jun., 1915), pp. 669-676

The question certified to it was whether the 14th amendment served to indemnify Davis from criminal prosecution. As usual, you have bogus information.

"Thereupon, counsel for Mr. Davis asked "that the fact of the disagreement be certified to the Supreme Court of the United States," which request was granted and the following entry was made upon the journal of that court: "At that term of the court, begun and held at Richmond, in the said district, on the 23rd day of November, 1868, and continued until this day, a motion was made on behalf of the defendant to quash or set aside the said indictment, and to dismiss the same and the prosecution thereof. And upon that motion it appeared that the said Jefferson Davis, having previously to the offenses charged in the said indictment taken an oath as a member of congress to support the constitution of the United States, the ques- tion arose whether, by the operation and effect of the third clause of the fourteenth amendment to the constitution of the United States, the defendant is exempted from indictment or prosecution for treason in levying war and participating or engaging in the late rebellion. And upon that question the opinions of the judges were opposed. And thereupon the said point is upon the request of the said defendant, stated under the direction of the said judges, and certified under the seal of the said Circuit Court to the Supreme Court of the United States at its next session."
Edited. the Supreme Court deciding on it is different from Chase ruling on it in the Federal Court.
 

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WJC

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Although some have provided interesting new information and supporting arguments, others appear more intent on disrupting the discussion.
If you cannot participate in a focused, civil discussion of this topic, don't post here!
 

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Thanks for your response and the URL to Scott v. Sandford. In pursuing your interest in how northerners might react to unfavorable decisions, you may also want to read about the Booth Cases.
<In Re: Booth. 3 Wis. 1 (1854). https://www.wicourts.gov/courts/supreme/docs/famouscases01.pdf >
The bottom line is that contrary to the opinion of some here, late antebellum court decisions favored slaveholders while denying the 'states rights' of Free States. Those decisions were universally cheered by the same Southerners who otherwise fervently claimed dedication to states rights.
Nice try at spinning what I actually wrote in post#202, you may need to reread it.
 

WJC

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Nice try at spinning what I actually wrote in post#202, you may need to reread it.
Thanks for your response.
Help me understand just how did I "spin" your two line post? The first line, "Legalized slavery in the North?" seems unrelated to my post which it referenced (which directly answered your earlier "What if?" question); the second was the URL.
Certainly, no "spin" was intended: I simply answered your post as I understood it.
 

cash

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In Post #252 I said, "Davis' lawyers brought up to Chief Justice Chase that Davis had already been punished by the 14th Amendment and that trying him for Treason would be double jeopardy. Chase accepted that argument and ruled to that effect."

The response incorrectly said, "Chase issued no ruling on the double jeopardy issue implicated by the 14th, so it is irrelevant."

In Post #255 I gave a lengthy excerpt, with sources, from Roy Nichols' seminal article on the case, along with a quotation from William C. Davis' biography of Davis.

The Nichols excerpt ended thus:
[begin quote]
The case came before the Circuit Court November 30-December 3; Chase and Underwood were both on the bench. On an appointed day O'Conor and Ould argued that the Fourteenth Amendment, because it had inflicted punishment, barred further prosecution. Dana, assisted by Beach and Wells, denied the validity of the defendant's contention. The Constitution, Dana said, was not criminal law, but established an organic political system; consequently, the clause referred to could not be a penalty, but only one of several phrases defining the qualifications necessary for holding certain offices in this organic system. On December 5, Chase announced that he and Underwood could not agree; a certificate of division therefore was entered in the minutes and sent to the Supreme Court. The district attorney then asked that a day be set for trial after the coming session of the Supreme Court, a desire shared by O'Conor. Chase said that the matter could be left open until it was definitely known when the Supreme Court would finish its winter term. [47]

But no further date was ever to be set. Evarts had surmised that O'Conor's move was made to get the case referred to the Supreme Court during the coming term. WE may also suspect that he feared that Chase's reasoning [that the 14th Amendment already punished Davis for treason and trying him would be a violation of the prohibition on double jeopardy] would influence a majority of the court to quash the indictment. This would be a defeat for the government, and so, possibly in order to avoid this contingency, he offered to enter a nolle prosequi if the defendant's counsel would agree to drop proceedings and not call up the case in the Supreme Court; O'Conor assented. [48] On Christmas Day Johnson issued Evarts's proclamation granting complete amnesty to all participants in the late rebellion. On this ground a nolle prosequi was entered in the Circuit Court in February, and a few days later Evarts moved that the certificate of division be dismissed by the Supreme Court. [49] On February 26, 1869, the Attorney General wrote the defendant's legal advisers that instructions had been given to nolle presequi all indictments for treason alleged to have been committed during the late war and that his office had "no information of any such prosecutions" pending anywhere against Jefferson Davis. [50][end quote]

The William C. Davis quote:
"On the last day of November, Davis's counsel petitioned to quash the indictment and then proposed to the court that Davis had already been punished for his supposed crimes before the trial, thanks to the constitutional amendment that excluded him and others from certain rights of citizenship. On December 5 Chief Justice Chase dismissed the indictment, agreeing that since punishment had already been inflicted by the Fourteenth Amendment, the case could not be tried ex post facto." [William C. Davis, Jefferson Davis: The Man and His Hour, p. 663]

The incorrect response was: " Chase never ruled, never ruled, on the 14th. And nothing in your post indicates otherwise."

In Post #260 I quoted directly from the case record itself:

[begin quote]
Davis' lawyers moved to have the indictment quashed on the basis of double jeopardy regarding the 14th Amendment. Chase, on December 5, "announced that the court had failed to agree upon a decision in regard to the motion made to quash the indictments against Mr. Jefferson Davis." [7 Fed. Cas. 63, 102] That meant Chase and Underwood were on opposite sides of whether the 14th Amendment constituted double jeopardy when combined with a treason trial. "THE CHIEF JUSTICE instructed the reporter to record him as having been of opinion on the disagreement, that the indictment should be quashed, and all further proceedings barred by the effect of the fourteenth amendment to the Constitution of the United States." [Ibid..]
[end quote]

The incorrect response was to quote from a law review article on the Supreme Court not continuing the case, which is irrelevant to what happened in the Federal Court.

As I said, Chief Justice Chase ruled that the 14th Amendment kept Davis from being prosecuted. Judge Underwood, who was Chase's co-judge in the case, disagreed. But that's what kept the case from moving forward. It was the Christmas pardon that included Davis which put the final nail in the case's coffin.

This shows the respondent had a faulty opinion about why the charges against Davis were not prosecuted and what I had posted was correct.
 

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Thanks for your response.
Help me understand just how did I "spin" your two line post? The first line, "Legalized slavery in the North?" seems unrelated to my post which it referenced (which directly answered your earlier "What if?" question); the second was the URL.
Certainly, no "spin" was intended: I simply answered your post as I understood it.
My post 202 (my “earlier What if question”)
Can you imagine the Northern reaction had some Southern Supreme Court jurist discovered an obscure constitutional clause that could be twisted to read that slavery was constitutionally permissible in all US states and territories and anyone, or group, actively opposing it was a direct violation of the US Constitution?

Your post 234
“We don't have to imagine it: it happened with Scott v. Sandford.”

Scott vs, Sandford (Dred Scott Decision) did make slavery constitutionally permissible in all the United States and territories.
 

WJC

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My post 202 (my “earlier What if question”)
Can you imagine the Northern reaction had some Southern Supreme Court jurist discovered an obscure constitutional clause that could be twisted to read that slavery was constitutionally permissible in all US states and territories and anyone, or group, actively opposing it was a direct violation of the US Constitution?

Your post 234
“We don't have to imagine it: it happened with Scott v. Sandford.”

Scott vs, Sandford (Dred Scott Decision) did make slavery constitutionally permissible in all the United States and territories.
Thanks for your response.
So all of this is a 'dust-up' over nothing since we both agree with what I said in my post #234. To your question (post 202 ):
"Can you imagine the Northern reaction had some Southern Supreme Court jurist discovered an obscure constitutional clause that could be twisted to read that slavery was constitutionally permissible in all US states and territories and anyone, or group, actively opposing it was a direct violation of the US Constitution?", I there responded (as you do now) "We don't have to imagine it: it happened with Scott v. Sandford."
 

WJC

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It gets tiresome watching supposedly mature individuals mock the opinions of others by repeating their words slightly edited. If you disagree with the opinion another has expressed, say so and provide evidence to refute it. If you choose not to do that common courtesy, don't' post here!
 

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Thanks for your response.
So all of this is a 'dust-up' over nothing since we both agree with what I said in my post #234. To your question (post 202 ):
"Can you imagine the Northern reaction had some Southern Supreme Court jurist discovered an obscure constitutional clause that could be twisted to read that slavery was constitutionally permissible in all US states and territories and anyone, or group, actively opposing it was a direct violation of the US Constitution?", I there responded (as you do now) "We don't have to imagine it: it happened with Scott v. Sandford."
If Scott vs. Sandford legalized slavery on Northern soil you would have seen more of it there, Northerners weren't that righteous.
 

WJC

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If Scott vs. Sandford legalized slavery on Northern soil you would have seen more of it there, Northerners weren't that righteous.
Thanks for your response.
Scott v Sandford did not legalize slavery in the Free States. It did, however, rule that "a free negro of the African race, whose ancestors were brought to this country and sold as slaves" could not be a citizen.
<Dred Scott v. Sandford. 60 U. S. 393. https://www.law.cornell.edu/supremecourt/text/60/393#writing-USSC_CR_0060_0393_ZS
As Chief Justice Rehnquist pointed out, "People cared a great deal about this question-it was very much in the public mind at the time the decision came down- and most people in the North were outraged by the decision."
<Remarks of the Chief Justice, Symposium on Judicial Independence, University of Richmond T. C. Williams School of Law
March 21, 2003. https://www.supremecourt.gov/publicinfo/speeches/sp_03-21-03.html >
 

cash

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I remind everyone of the original claim:

"Can you imagine the Northern reaction had some Southern Supreme Court jurist discovered an obscure constitutional clause that could be twisted to read that slavery was constitutionally permissible in all US states and territories and anyone, or group, actively opposing it was a direct violation of the US Constitution?"

Dred Scott v. Sanford did say slavery was constitutionally permissible in all US states and territories. The fact that it was constitutionally permissible does not preclude a state from refusing to implement a slave code within its own borders. It simply means any state or territory in the US could have slavery if it wanted to implement a slave code. This went directly against the Missouri Compromise, which forbade slavery in territories north of 36 degrees 30 minutes North Latitude. As I showed through case citations already, actively opposing the fugitive slave law was a direct violation of the Constitution and was considered treason against the United States.
 

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Edited.



You are arguing that the Federal government owns the states. That is a distinctly un-American and anti-constitutional position to take.



Edited. the secessions absolutely were peaceful and democratic. Months later, Lincoln chose to start a war in order to force the peacefully and democratically seceded states back into the US. You can make whatever case you want about the Feds owning the states and how offended you might personally feel if one or more states peacefully and democratically choose to disassociate with the Federal government, but your case is built entirely separate from what the law actually says. Edited.
The secessionists were provably not peaceful. They did something never done and was debated whether could be done since the founding of the nation (unilateral secession). They gave Lincoln about a month and a half after his inauguration and then gave up on peace and attacked Fort Sumter. They were the first to break the peace.

Keep in mind even if you recognize unilateral secession as legal, then South Carolina was legally the same State just leaving the US and joining the CSA. They legally deeded Fort Sumter (and various other Forts they illegally took) to the US government, they then attacked US territory.

Further evidence of the Confederacy's initiation aggression and war actions is South Carolina Governor Pickens letter to the Virginia Secession Convention
----
Received your despatch. It is true that Fort Sumter was bombarded all day yesterday, after refusing to evacuate, and four vessels were off the bar with troops and supplies waiting for the tide to come in, and the Fort was in signal with them.

President Lincoln sent a special messenger, and informed me in writing that supplies would be put in, but asked no reply. Not a man at our batteries was hurt even. The Fort was furious in its fire on us. Our iron battery did great damage to the Fort in the south wall. Our shells fall freely in the Fort; it is not known exactly with what effect, but supposed to be serious, as they are not firing this morning. Our Enfield battery dismounted three of the large Columbiads. We will take the Fort and can keep sixteen ten-inch mortars all the time on it, besides heavy guns which will give no peace, night or day. We can sink the fleet if they attempt to enter the channel. If they land elsewhere we can whip them. I have here, now, nearly seven thousand of the best troops in the world, and a reserve of ten thousand on our railroads. The war is commenced, and we will triumph or perish. This is my answer to you. Please let me know what Virginia will do, as I telegraph to you candidly. F. W. PICKENS.

----

Where he declared "war is commenced" on April 15th, two days before Lincoln called for troops. The Confederates knew they were doing some bold and never done before, they were ready to back it up with violence and war to accomplish their goal.

Thanks for your opinions, please scroll up and read the facts I have posted.
Article 1 section 10 does not address secession. And so we fall back to the 10th Amendment, which very plainly leaves the matter up to the people and the states.​
Incorrect. The 10th Amendment does not leave the matter up to "the people and the states" but to the states or the people.

----
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
----

This means "the people" is a construct different than "the states"... what does that mean? It doesn't clarify and would require some sort of process to fully establish what would constitute "the people." If a State exerted a powered that wasn't challenge as instead belonging to "the people" then there is no problem, unilateral secession was indeed challenged (and debated since the forming of the establishment of the US Constitution).

Of course there were those that thought the idea a State could remove itself was ridiculous and violated the entire concept of the US Constitution and a "perpetual" union... You know, people like Robert E Lee.

Excerpt

----
Secession is nothing but revolution. The framers of our Constitution never exhausted so much labour, wisdom & forbearance in its formation & surrounded it with so many guards & securities, if it was intended to be broken by every member of the confederacy at will. It was intended for pepetual [sic] union, so expressed in the preamble,4 & for the establishment of a government, not a compact, which can only be dissolved by revolution or the consent of all the people in convention assembled.
----

Larger reference:

https://leefamilyarchive.org/reference/essays/rachal/index.html

----
...

The South in my opinion has been aggrieved by the acts of the North as you say. I feel the aggression, & am willing to take every proper step for redress. It is the principle I contend for, not individual or private benefit. As an American citizen I take great pride in my country, her prosperity & institutions & would defend any State if her rights were invaded. But I can anticipate no greater calamity for the country than a dissolution of the Union. It would be an accumulation of all the evils we complain of, & I am willing to sacrifice every thing but honour for its preservation. I hope therefore that all Constitutional means will be exhausted, before there is a resort to force. Secession is nothing but revolution. The framers of our Constitution never exhausted so much labour, wisdom & forbearance in its formation & surrounded it with so many guards & securities, if it was intended to be broken by every member of the confederacy at will. It was intended for pepetual [sic] union, so expressed in the preamble,4 & for the establishment of a government, not a compact, which can only be dissolved by revolution or the consent of all the people in convention assembled. It is idle to talk of secession. Anarchy would have been established & not a government, by Washington, Hamilton, Jefferson, Madison & the other patriots of the Revolution. In 1808 when the New England States resisted Mr Jeffersons Imbargo law & the Hartford Convention assembled secession was termed treason by Virga statesmen. What can it be now? Still a union that can only be maintained by swords & bayonets, & in which strife & civil war are to take the place of brotherly love & kindness, has no charm for me. I shall mourn for my country, & for the welfare & progress of mankind. If the Union is dissolved & the government disrupted, I shall return to my native State & share the miseries of my people & save in her defence will draw my sword on none. Give much love to Charlotte to my dear little son & believe me always your devoted father
----
 
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unionblue

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There is never anything new in the "was secession constitutional" back and forth. Its more theology than history.
True, then again what is Human behavior but repeating history, over and over again.
We don't have to keep discussing if the earth is flat.
You would think, ironically that joke is less funny these days :frown:
@matthew mckeon ,

The sermon never changes and we've heard the faithful preach it over and over again, that somehow, somewhere, unseen in the US Constitution, there is the miracle of unilateral secession.

Doesn't matter there were pre-war supreme court rulings that denied this. Never mind the Chief Justice of the Supreme Court, before the firing on Ft. Sumter, said there was no secession to be found in the Constitution for it's mode or exercise. Those rulings must be belittled and dismissed so that the sermon can go on and on. Never mind that the Forefathers conducted a Revolution, it must be preached they too, somehow, "seceded" from the Mother Country too.

And for heaven's sake, do not confuse the faithful with words of slavery, ordinances of secession mentioning same, pre-Sumter acts of violence and war, or the fact the vast majority of the nation, at the time, didn't buy into the sermon either. Faith is the answer, not history, not evidence, but faith, that if somehow the Confederacy had survived, all would be so much better in our present.

The old saying comes ringing forth one more time in the face of this oft-repeated religious-like faith.

"History is not history, unless it is the truth."

And Amen.

Unionblue
 



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