Secession

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trice

Lt. Colonel
Joined
May 2, 2006
Messages
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Did the south have the legal right to secede?
IMHO, no, they did not. No such legal, unilateral "right of secession" existed at the time of the Civil War -- or can be shown to have ever existed before that time to use as a legal precedent.

The Supreme Court has also ruled that the actions of the Confederate States in "secession" were invalid (see Texas v. White for actual details).

The Fourteenth Amendment (passed after the Civil War) is regarded as also supporting the invalid nature of unilateral secession and says this:
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
 

GwilymT

Brigadier General
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Hi @ewtsmail and welcome to CWT!

Did the south have the legal right to secede is quite the loaded question around here! I for one tend to lean towards no, as secession isn’t in the constitution by its very nature it is non-constitutional. As Abe said:

“I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination.”

-First Inaugural

There are those who would argue that the Constitution wasn’t the founding of a national government but a contract between independent parties (states). However, this still fails as an argument for legal secession as to legally terminate a contract without the assent of all parties is a breach of the contract and the party breaching will have to pay the penalty.

Could secession have been conducted legally? Maybe. Perhaps by petition to congress (who under the constitution does have power over the make up o f the Union), or through the courts, or through a National Convention. Sadly, we’ll never know because the secessionists of 1860-61 made their move unilaterally, outside the courts, congress, or other states to which they were bound and started a war to try to make that unilateral secession fact.

In sum, I think it’s safe to say that unilateral secession is illegal and unconstitutional. That doesn’t mean that secession itself couldn’t be accomplished legally and without bloodshed.
 
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ewtsmail

Cadet
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Oct 4, 2019
Messages
3
Hi @ewtsmail and welcome to CWT!

Did the south have the legal right to secede is quite the loaded question around here! I for one tend to lean towards no, as secession isn’t in the constitution by its very nature it is non-constitutional. As Abe said:

“I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination.”

-First Inaugural

There are those who would argue that the Constitution wasn’t the founding of a national government but a contract between independent parties (states). However, this still fails as an argument for legal secession as to legally terminate a contract without the assent of all parties is a breach of the contract and the party breaching will have to pay the penalty.

Could secession have been conducted legally? Maybe. Perhaps by petition to congress (who under the constitution does have power over the make up o f the Union), or through the courts, or through a National Convention. Sadly, we’ll never know because the secessionists of 1860-61 made their move unilaterally, outside the courts, congress, or other states to which they were bound and started a war to try to make that unilateral secession fact.

In sum, I think it’s safe to say that unilateral secession is illegal and unconstitutional. That doesn’t mean that secession itself couldn’t be accomplished legally and without bloodshed.
[/QUOTE
 

annesmail

Cadet
Joined
Oct 3, 2019
Messages
9
Hi @ewtsmail and welcome to CWT!

Did the south have the legal right to secede is quite the loaded question around here! I for one tend to lean towards no, as secession isn’t in the constitution by its very nature it is non-constitutional. As Abe said:

“I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination.”

-First Inaugural

There are those who would argue that the Constitution wasn’t the founding of a national government but a contract between independent parties (states). However, this still fails as an argument for legal secession as to legally terminate a contract without the assent of all parties is a breach of the contract and the party breaching will have to pay the penalty.

Could secession have been conducted legally? Maybe. Perhaps by petition to congress (who under the constitution does have power over the make up o f the Union), or through the courts, or through a National Convention. Sadly, we’ll never know because the secessionists of 1860-61 made their move unilaterally, outside the courts, congress, or other states to which they were bound and started a war to try to make that unilateral secession fact.

In sum, I think it’s safe to say that unilateral secession is illegal and unconstitutional. That doesn’t mean that secession itself couldn’t be accomplished legally and without bloodshed.
 

annesmail

Cadet
Joined
Oct 3, 2019
Messages
9
Why wasn't Jefferson Davis tried for treason if Secession was illegal. Treason by definition in the constitution is levying war against the United States. If He was guilty why didn't he go to trial. Because it would have brought in question the possibility that Lincoln waged an unconstitutional war against the south.
 
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ewtsmail

Cadet
Joined
Oct 4, 2019
Messages
3
[/QUOT
IMHO, no, they did not. No such legal, unilateral "right of secession" existed at the time of the Civil War -- or can be shown to have ever existed before that time to use as a legal precedent.

The Supreme Court has also ruled that the actions of the Confederate States in "secession" were invalid (see Texas v. White for actual details).

The Fourteenth Amendment (passed after the Civil War) is regarded as also supporting the invalid nature of unilateral secession and says this:
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
[/QUOT
Thank you for your reply. I have another question. Jefferson Davis was never tried for treason. If secession was treason, then why was he never tried?
 

trice

Lt. Colonel
Joined
May 2, 2006
Messages
11,916
Thank you for your reply. I have another question. Jefferson Davis was never tried for treason. If secession was treason, then why was he never tried?
There was no doubt that he had committed Treason under the definition in the Constitution (there is no doubt that anyone who fought for or supported the Confederacy committed Treason under the definition in the Constitution). However, the Founding Fathers intentionally made it difficult to convict anyone of Treason in the United States -- hardly anyone is ever charged with it in the our history.

The problems with indicting and trying Jefferson Davis with Treason after the Civil War were:
  • US requires the trial to be in the State where the crime occurred. Jefferson Davis never left the confines of the Confederacy during 1861-65, so any trial would have to be in one of those States. An attempt to indict him was made in Virginia, but the US government squashed it as unhelpful. (Someone like Robert E. Lee could have been indicted in Maryland or Pennsylvania if the government had wanted to do so because of the Antietam and Gettysburg Campaigns. Someone like John Hunt Morgan could have been indicted in Indiana or Ohio because of the 1863 Morgan's Raid in those States.) The post-war government thought the odds of a hung jury or a pro-Confederate one that declared Davis innocent in Virginia was too great to be worth the risk of trying him.)
  • After the end of the Civil War, the idea was to put the country back together quickly, not further divide it with a contentious trial.
  • With the issue of secession settled de facto by Union victory, no one in power wanted to rush into a legal battle to justify what four years of war. Winning gave them nothing but an extra bit of revenge; losing might open a pandora's box of grief.
  • If you try Davis, how many others do you indict? Vice President Stephens? Members of the Confederate Congress? Confederate Governors and judges? Confederate generals? Confederate common soldiers? Civilians who supported the Confederacy? Where do you draw the line? How many years does the government prosecute this? How many thousands, or tens of thousands, or hundreds of thousands do they round up and prosecute? What do they do with the prisoners? What do they do with the convicted?
There were plenty of people who said they wanted the heads of people like Davis, particularly after Lincoln was assassinated. Over time they cooled off and cooler heads prevailed. The nation wanted to heal and go forward more than it wanted to exact punishment and revenge.

For comparison, Europe almost exploded into a continental war over a revolt against the Russians in Poland-Lithuania during the American Civil War. The Russians appointed a new Governor to put the revolt down. That man was Count Mikhail Nikolayevich Muravyov -- better known to history as the "Hangman of Vilnius". At least 127 people were publicly hanged; about 9,000 were resettled to Siberia. Enormous sums were extracted from towns and villages where rebels were reported. The Lithuanian language was banned (proscription ended in 1904). This may have been routine treatment for the government of the Tsar of All the Russias, but fortunately Americans decided not to do that to "the South" after the Civil War.
 

thomas aagaard

1st Lieutenant
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Nov 19, 2013
Messages
3,963
Location
Denmark
Did the south have the legal right to secede?
They could have gone to Congress and said "we want out".
Congress could then simply have passed a bill saying x state was no longer part of the union.
It might have been challenged in court... and it might have been overruled by the supreme court.

But similarly it might not have been. (If congress can add a state by a simply bill, why not remove one?)

That would have been a legal and peaceful way of doing it...and if it had not worked, the south would had a much better moral case for resorting to military force.
 
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