The charge of treason could only be leveled if secession were contrary to the Constitution. Unlike the revolt of the colonies against Britain - which in fact WAS treasonous - efforts at secession which occurred in the North before those in the South were not recognized as anything other than the natural right of the Sovereign States and the People to do what was considered best. Below are some references regarding the legality of secession which press upon the use of the terms "treason" and "traitors":
Theoretical Arguments – Is Secession Treason? Pages 50-51
It was frequently argued in the Federalist and elsewhere, by those who were persuading the States to adopt the Federal Constitution, that the State would have a sufficient guarantee of protection, the love and affection of its citizens – that the citizen would naturally cling to his State, and side with her against the Federal Government – that in fact, it was rather to be apprehended that the Federal Government would be too weak and the States too strong, for this reason, instead of the converse of the proposition being true. It was not doubted, in that day, that the primary and paramount allegiance of the citizen was due to his State, and that, in case of a conflict between her and the Federal Government, his State would have the right to withdraw his allegiance, from that Government. If it was she who transferred it and if she had the right to transfer it, it follows beyond question, that she would have the right to withdraw it. It was not a case for the voluntary section of the citizen, either way; he could not, of his own free will, either give his allegiance to the Federal Government, or take it away.
It this be true, observe in what a dilemma he has been placed, on the hypothesis that secession is treason. If he adheres to the Federal Government, and takes up arms against his State, he becomes a traitor to his State. If he adheres to his State, and takes up arms against the Federal Government, he becomes a traitor to that Government. He is thus a traitor either way, and there is no helping himself. Is this consistent with the supposed wisdom of the political Fathers, those practical, common sense men, who formed the Federal Constitution?
The mutations of governments, like all human events, are constantly going on. No government stands still, any more than the individuals of which it is composed. The only difference is, that the changes are not quite so obvious to the generation which views them. The framers of the Constitution did not dare to hope that they had formed a government that was to last forever. Nay, many of them had serious misgivings as the the result of the "experiment" they were making. Is it possible, then, that those men so legislated, as to render it morally certain, that if their experiment should fail, their descendents must become either slaves or traitors? If the doctrine that secession is treason be true, it matters not how grievously a State might be oppressed by the Federal Government; she has been deprived of the power of lawful resistance, and must regain her liberty, if at all, like other enslaved States, at the hazard of war, and rebellion. Was this the sort of experiment in government that our forefathers supposed they were making? Every read of history knows that it was not.
Secession and Treason at the Beginning of the War, Pages 71-72
There were no such questions then, as rebellion and treason. This was a Federal after-thought, when that Government began to get the better of us in the war….After the first drubbing we gave him at Manasses, he was disposed to be quite reasonable, and the Federal Congress passed the conciliatory resolution I have quoted in a previous chapter, intimating to us that if we would come back, slavery should be secure in the States and our "rights and dignity" remain unimpaired. But as he gained strength, he gained courage, and as the war progressed it became evident that we should be beaten, he began to talk of traitors and treason.
From Al Benson:
http://www.albensonjr.com/guesswhat.shtml
Burke Davis, (no relation to Jeff Davis that I know of) in his book The Long Surrender on page 204,
noted a quote by Chief Justice Salmon P. Chase, telling Edwin Stanton that "If you bring these leaders to trial, it will condemn the North, for by the Constitution, secession is not rebellion...His (Jeff Davis') capture was a mistake. His trial will be a greater one. We cannot convict him of treason."
Burke Davis then continued on page 214, noting that a congressional committee proposed a special court for Davis' trial, headed by Judge Franz Lieber. Davis wrote: "After studying more than 270,000 Confederate documents, seeking evidence against Davis, the court discouraged the War Department:
'Davis will be found not guilty,' Lieber reported 'and we shall stand there completely beaten'." What the radical Yankees and their lawyers were admitting among themselves (but quite obviously not for the historical record) was that they and Lincoln had just fought a war of aggression against the Southern states and their people, a war that had taken or maimed the lives of over 600,000 Americans, both North and South, and they had not one shred of constitutional justification for having done so, nor had they any constitutional right to have impeded the Southern states when they chose to withdraw from a Union for which they were paying 83% of all the expenses, while getting precious little back for it, save insults from the North.
The Real Lincoln, by Thomas DiLorenzo
Thomas Jefferson and Secession, Page 87
"If any state in the Union will declare that it prefers separation…to a continuance in union…I have no hesitation I saying, let us separate." (Footnote- 3 )
John Quincy Adams, 1839, on the Legality of Secession, pages 87-88
"The indissoluble link of union between the people of the several states of this confederated nation, is, after all, not in the right, but in the heart. If the day should ever come (may heaven avert it!) when the affections of the people of these States shall be alienated from each other; when the fraternal spirit shall give way to cold indifference, or collision of interests shall fester into hatred, the bands of political associations will not long hold together parties no longer attracted by the magnetism of conciliated interests and kindly sympathies; to part in friendship from each other, than to be held together by constraint. Then will be the time for reverting to the precedents which occurred at the formation and adoption of the Constitution, to from again a more perfect Union by dissolving that which could no longer bind, and to leave the separated parts to be reunited by the law of political gravitation to the center." (Footnote 5 - )
Alexis DeTocqueville, on Secession, in "Democracy in America", Page 88
"The Union was formed by the voluntary agreement of the States; and in uniting together they have not forfeited their nationality, nor have they been reduced to the condition of one and the same people. If one of the states chooses to withdraw from the compact, it would be difficult to disprove its right of doing so, and the Federal Government would have not means of maintaining its claim directly either by force or right." (Footnote 6 - )
The New England Secessionists, Page 93
More than a half a century before the first shots were fired at Fort Sumter, 3 serious secession attempts were orchestrated by the New England Federalists, who believed that the policies of the Jefferson and Madison administrations, (1801 – 1807), especially the 1803 Louisiana Purchase, the national trade embargo of 1807, and the War of 1812, were so disproportionately harmful to New England that they justified disunion. The New England Federalists and the New England public, debated the wisdom of secession for 14 years, but never was the inherent right of secession questioned.
Early History of Secession, Pages 13-14
It was Massachusetts, not South Carolina, that asserted the rights of states to secede and threatened to do so 4 times. First, in the early days, on the adjustment of state debts; second, on the Louisiana Purchase by Jefferson; third, during the War of 1812; and fourth, on the annexation of Texas. One chamber of the Massachusetts legislature actually passed a resolution of secession. Thomas Jefferson clearly acknowledged the right of secession when there was talk of the newly formed territories following the Louisiana Purchase to withdraw from the Union. He actually wished them luck if they did so and hoped that they would get along with the original federation as brothers and friends. (Footnote 9 - Howard Perkins et al., eds, Northern Editorials on Secession, 1: 123, New York, 1942)
Page 15, Three States, Rhode Island, New York, and notably the most powerful at that time, Virginia, retained the right of secession in their act approving the Constitution on June 26, 1788:
"…..that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whenever the same shall be perverted to their injury or oppression.
Northern Threats of Secession, Pages 15-16
The Hartford Convention, in 1814, attended by delegates from Massachusetts, Connecticut, Rhode Island, and parts of Vermont and New Hampshire, opposed the War of 1812, as well as many of the policies of Jefferson and his successors. One of their solutions was secession from the union. They wanted to radically change the Constitution to improve states' rights. But the war ended shortly thereafter and the movement died. There were secessionist cries from some Northern states over the enforcement of the Fugitive Slave Act, the whiskey tax, the War of 1812, the admission of Texas and the Mexican War. The Abolitionist party proposed that the Northern, nonslave states secede from the Union with the Southern states. The best way to get rid of the abominable institution of slavery, said the abolitionist, was to withdraw from any political union with the slave states. The right of secession was so deeply rooted in the early history of the nation that hardly any region did not at one time assert or recognize that right. Thus, Lincoln's assertion that secession had no basis in law makes no sense.
The Union is Voluntary, Page 33
C.C. Burr, editor of Judge Upshur's book, The Federal Government: Its True Nature and Character, noted:
"…Union is necessarily voluntary – the act of choice, free association. Nor can this voluntary system be changed to one of force without the destruction of the Union…"
(Footnote 51 – C.C. Burr, ed., Abel P. Upshur, The Federal Government: It's True
James Kent, Commentaries on American Law, Page 202
"No nation had a right to force the way of the liberation of Africa, by trampling on the independence of other states; or to procure an eminent good by means that were unlawful; or to press forward to a great principle by breaking through other great principles that stood in the way." (Footnote 16 – James Kent, "Commentaries on American Law", Da Capo Press, NY, NY,: 1971, vol. I, p. 186)
James Rawle on Secession, Page 210
"It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle of which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed. This right must be considered as an ingredient in the original composition of the general government, which though not expressed, was mutually understood…." (Footnote 42 – William Rawle, "A View of the Constitution", H.C. Carey and Lea, Philadelphia, PA., p. 296)
"The secession of a state from the Union depends on the will of the people of such state. The people alone as we have already seen, hold the power to alter their constitution. But in any manner by which a secession is to take place, nothing is more certain than that the act should be deliberate, clear, and unequivocal. To withdraw from the Union is a solemn, serious act. Whenever it may appear expedient to the people of a state, it must be manifested in a direct and unequivocal manner." (Footnote 43 – Ibid, p. 302)
George Washington, Page 159
"Government is not reason; it is not eloquence, it is force! Like fire, it is a dangerous servant and a fearful master!" (Footnote 5 – George Washington, as cited in "The Fearful Master", Edward G. Griffin (Western Islands Publishers, Boston, MA, 1964), p. ii)
States Rights, Page 161
The individual states as agents of the people created the federal government. The states did not intend to create a superior institution to sit in judgment over them.
The term "delegate" implies the action of a superior toward an inferior or an equal toward and equal. It cannot mean the action of an inferior toward a superior in that a superior already has the power to require the inferior to submit.
States Rights, Page 161
Virginia, Rhode Island and New York
When these 3 states ratified the Constitution, each one included in their ratifications, a clause which state that if at any future time they felt their well being threatened, that they reserved the right to resume their independence. None of the other 10 states challenged these clauses.
Madison, Secession, and Self-Preservation
When Madison discussed the conditions under which a state could secede from the Articles of Confederation, without the consent of the other states, he appealed to the natural right of self-preservation and to the principle that the safety and happiness of society were the objects to which all political institutions "must be sacrificed." Said Madison,
"The first question [how a state could secede without approval from the other states] is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. (Federalist Paper Number 43)"
Bringing the