History Forum / War History / US Civil War / October 2006

Common on these chat groups is the claim that not only was secession
legal, but that this fact was so obvious that no one really disputed it
in 1860-61 nor later. And those who opposed secession were close to
being criminal in their opposition.

A couple of recent quotes on this site illustrate the claim:

"Secession was never illegal, nor unconstitutional under a reasonable
interpritation. Defending oneself against a federal government hell
bent on breaking the law is not illegal either."

"What would you have done in his shoes presuming you felt secession
was legal, and in this case moral and proper. Let the USA continue to
keep armed troops in control of a fort on your sovereign territory,
with artillery that could be used to bombard a major city without even
bothering to recognize you?"

The claim is false on two points:

First those making it in 1860-61 and as well as in Y2K ignore the fact
that any arguments in favor of secession were and are instantly
countered with equally valid and reasoned arguments against the
proposition. While the pro-secessionists make good points, they seem to
miss the fact that the pro-unionists also make good points.

Secession was not obviously legal in 1860-61 - indeed, as it turned
out there were a lot more folk who believed that secession was illegal
than there were those who believed it to be legal. This is not to deny
that secession had - and has -its arguments. Rather it is to point
out that the Unionists also had their good points.

Given that neither side had a monopoly on the legality/illegality of
secession, we can turn to the second point:

How had secession or the threat of secession been handled previously in
American history?

Although not strictly speaking secessionists, the farmers involved in
the 1894 Whiskey Rebellion threatened the central government and the
Washington Administration reacted quickly, declaring the tax resisters
to be insurrectionists, and raising a military force to put down the
insurrection.

The military force was led, BTW, by a Revolutionary war general named
Light Horse Harry Lee. Hmm. I am sure, with that sort of heritage, any
son of Light Horse Harry would have supported the government in 1861.

Under President Jefferson, Aaron Burr may or may not have tried to
split off the western territories from the United States. Jefferson
reacted much as Washington had, arresting Burr and trying him for
treason. Chief Justice Marshall, acting as a district court judge (a la
Taney in Merryman), set such a high standard for treason convictions
that not only was Burr not convicted but since then the number of those
even tried to for treason, let alone convicted, can be counted on the
fingers of one's hands. However, Jefferson's quick action prevented
Burr from attempting any secession.

Andrew Jackson faced a more overt effort at secession with South
Carolina and we know what he thought of the idea. It is no accident
that in 1860-61, the Jacksonians were adamant that secession was not
permissible Taney may not have liked Lincoln but he upheld the
government in the Prize Cases. Sam Houston was booted out as Texas
governor because he opposed his state's secession. Andrew Johnson was
the only senator from a Confederate state to continue his duties in
Washington.

In 1840, during the Gag Rule fight over anti-slavery petitions in the
House of Representatives, John Quincy Adams, the member from Braintree,
offered a petition from some of his constituents, calling for the
dissolution of the Union because of the stain of slavery.

The Southern members reacted with fury. Although many had themselves
threatened secession if the Yankees did not support slavery and close
down the abolitionists, evidently it was not permissible for a
Northerner to do the same. The slave state representatives chose Thomas
Marshall, of Kentucky, nephew of the late chief justice, to bring
forward a motion of censure:

"Whereas, the Federal Constitution is a permanent form of Gov¬ernment
and of perpetual obligation, until altered or modified in the mode
pointed out by that instrument, and the members of this House, deriving
their political character and powers from the same, are sworn to
support it, and the dissolution of the Union necessarily implies the
destruction of that instrument, the overthrow of the American
Repub¬lic, and the extinction of our national existence: A
proposition, there¬fore, to the Representatives of the people, to
dissolve the organic law framed by their constituents, and to support
which they are com¬manded by those constituents to be sworn, before
they can enter upon the execution of the political powers created by
it, and entrusted to them, is a high breach of privilege, a contempt
offered to this House, a direct proposition to the Legislature and each
member of it, to com¬mit perjury; and involves, necessarily, in its
execution and its conse¬quences, the destruction of our country and
the crime of high trea¬son.

"Resolved, therefore, That the Hon. JOHN Q. ADAMS, a member from
Massachusetts, in presenting for the consideration of the House of
Representatives of the United States, a petition praying the
dis¬solution of the Union, has offered the deepest indignity to the
House of which he is a member; an insult to the people of the United
States, of which that House is the Legislative organ; and will, if this
outrage be permitted to pass unrebuked and unpunished, have disgraced
his country, through their Representatives, in the eyes of the whole
world.

"Resolved, further, That the aforesaid JOHN Q. ADAMS, for this
in¬sult, the first of the kind ever offered to the Government, and for
the wound which he has permitted to be aimed, through his
instru¬mentality, at the Constitution and existence of his country,
the peace, the security, and liberty of the people of these States,
might well be held to merit expulsion from the national councils; and
the House deem it an act of grace and mercy, when they only inflict
upon him their severest censure for conduct so utterly unworthy of his
past relations to the State, and his present position. This they hereby
do for the maintenance of their own purity and dignity; for the rest,
they turn him over to his own conscience and the indignation of all
true American citizens."

After a long debate, where the Old Man Eloquent defended himself and
made fools of the Southern members, the measure was tabled.

In the ante-bellum world the most intrusive Federal law, indeed, except
for postmasters, the only Federal contact most Americans had, was the
1850 Fugitive Slave Law. In essence, forcing Northern citizens to
become slave catchers. When Wisconsin attempted nullification, the
Supreme Court overruled them: national law is supreme over state law.
There were no complaints from the slave states, indeed, there were
compliments. Any complaints were reserved for Free States which had the
gall to attempt to maintain the right of state's to protect their
citizens from arrest and deportation into slavery without due process
of law.

In the middle fifties, during the fight over Kansas, Secretary of War
Jefferson Davis responded to the efforts of the Free State settlers
resisting the Lecompton territorial legislature - and the latter, do
not forget, stands as the worse example of fraudulent voting in
American History, a distinction for which there are a lot of
competition!

Secretary of War Jefferson Davis to Bvt. Major General Persifor F.
Smith, 3 September 1856: "The position of the insurgents ... is that
of open rebellion against the laws and constitutional authorities, with
such an open manifestation of a purpose to spread devastation over the
land, as no longer justifies further hesitation or indulgence. ...
patriotism and humanity alike require that rebellion should be promptly
crushed."

    And three weeks later, the Adjutant General wrote to Smith, quoting
the Secretary of War, "'The only distinction of parties which, in
the military point of view, it is necessary to note, is that which
distinguishes those who respect and maintain the laws and organized
government from those who combine for revolutionary resistance to the
constituted authorities and laws of the land. The armed combination of
the latter class came within the denunciation of the President's
proclamation, and are proper subjects upon which to employ the military
laws.'"

    The next year the Government attempted to put down what the Buchanan
administration saw as rebellion in Utah by the Mormons. Although there
was little actual fighting, the Army, under the command of Albert
Sidney Johnson was embarrassed by the Mormon irregulars and only the
efforts of Buchanan's emissaries and the desire of Brigham Young to
avoid all out war prevented major bloodshed. Buchanan trumpeted the
results as a vindication of American might over lawless religious
separatists.

It is understandable and pardonable that when the slave states
attempted secession, there were a lot of Americans, both North and
South, who not only did not feel that secession was legal, but, to the
contrary, saw it as rebellion and treason.

Take care,

Bob

Judy and Bob Huddleston
10643 Sperry Street
Northglenn, CO  80234-3612
huddleston.r@comcast.net

..the greatest and the noblest man of the last century was Abraham
Lincoln...Though America was his motherland and he was an American, he
regarded the whole world as his native land.

                    Mahatma Gandhi, August 26, 1905