The Right of Secession
Part One of Two
by Gene Kizer, Jr.
. . . conceivably, it was the Northern States that acted illegally in precipitating the War Between the States. The Southern States, in all likelihood, were exercising a perfectly legitimate right in seceding from the Union.1
H. Newcomb Morse
Stetson University College of Law
Stetson Law Review, 1986
Senator Judah P. Benjamin of Louisiana was a brilliant legal mind who was later attorney general, secretary of war and secretary of state of the Confederacy.
In his farewell speech to the United States Senate on February 5, 1861 he went into great detail about the right of secession.
He asserted that the denial of that right is a "pretension so monstrous" that it "perverts a restricted agency [the Federal Government], constituted by sovereign states for common purposes, into the unlimited despotism of the majority, and denies all legitimate escape from such despotism . . . and degrades sovereign states into provincial dependencies."
He said that "for two-thirds of a century this right [of secession] has been known by many of the states to be, at all times, within their power."2
No American who believes in the Declaration of Independence can ever doubt the right of secession.
Our country was born of secession from the British Empire. Secession is defined by Merriam-Webster as "the act of separating from a nation or state and becoming independent."3 The Declaration of Independence starts with:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, . . .
The Southern States unquestionably had the right to secede from the Union. There is a preponderance of direct evidence supporting the right of secession.
Historian Kenneth M. Stampp in his book The Imperiled Union points out that "the case for state sovereignty and the constitutional right of secession had flourished for forty years before a comparable case for a perpetual Union had been devised," and even then its logic was "far from perfect because the Constitution and the debates over ratification were fraught with ambiguity."4
Historians such as Professor Stampp are like lawyers who have clients they know are guilty but they still have to defend them.5
If, as Professor Stampp (along with Judah Benjamin, Horace Greeley, Alexis de Tocqueville, Charles Dickens, George Washington, Thomas Jefferson, Massachusetts, and most leaders North and South including Abraham Lincoln in 18476) said -- "the case for state sovereignty and the constitutional right of secession had flourished for forty years" - then that means it was born from the country's founding and created by its Founding Fathers and it existed. Period. It is indisputable. How could it not be?
The Founding Fathers did not say that states had the right to secede for 40 years then they lose that right.
The Founding Fathers did not put a time limit or expiration date on it despite the economic/political needs of the North to promote a perpetual union to justify its war on the South.
Southerners had the right to secede and there is nothing that could take it away from them.
It would be so much more truthful if some historians would call an obvious truth a truth, but they have that guilty client to defend so they cloud the issue and give their client the benefit of the doubt, lest they be accused of being unpatriotic or, God forbid, a racist.
It makes no sense for a group of colonies, designated as individual sovereign states by King George III at war's end, who had just fought a bloody war to escape from a political union with the British Empire, to, so casually, lock themselves into another political union that they could not escape from. They wouldn't and didn't.
The right of secession was assumed but three states specifically reserved it before acceding to the Constitution. It was a condition they demanded, and that demand had to be met before they would ratify the Constitution and join the Union.
Those states are Virginia, New York and Rhode Island.
They specifically put in writing that they had the right to secede from the Union if it should ever become detrimental to their best interests, and they get to decide when that has happened.
All the other states approved of this right of secession of Virginia, New York and Rhode Island's, therefore, since all the states are equal, they had it too.
That is the kind of guarantee of freedom and self-government the Founding Father's bequeathed to us and it is in direct conflict with Lincoln and the North's idea.
Lincoln and the North are often represented in the secession debate in the South by the concept of the "tyranny of the majority" which Judah Benjamin mentioned at the beginning of this essay.
The tyranny of the majority is why the Founding Fathers created a republic and not a pure democracy where 50% plus one vote can hang the other 49%.
The ideas developed by Lincoln and the North were a result of their economic situation. They wanted centralization so they could use their majority to rule the entire country for their own wealth, aggrandizement and commercial gain.
Alexis de Tocqueville wrote that the urge for centralization in the 19th century was a powerful urge worldwide.
That's why the idea that the good North went to war to free the slaves rather than to increase its money and power is a fraud of biblical proportions and easily disproven.
H. Newcomb Morse writes persuasively about the right of secession in the Stetson Law Review, a publication of the Stetson University College of Law.
In an excellent article entitled "The Foundations and Meaning of Secession," Morse writes that the War Between the States did not prove that secession was illegal because
many incidents both preceding and following the War support the proposition that the Southern States did have the right to secede from the Union. Instances of nullification prior to the War Between the States, contingencies under which certain states acceded to the Union, and the fact that the Southern States were made to surrender the right to secession all affirm the existence of a right to secede . . .7
He adds that the Constitution's "failure to forbid secession" and amendments dealing with secession that were proposed in Congress as Southern states were seceding strengthened his argument that
the Southern States had an absolute right to secede from the Union prior to the War Between the States.8
Morse argues that because the Constitution did not forbid secession, then every state acceding to the Constitution had the implied right to secede from it.
He says that if men of the caliber of Madison, Hamilton, Wilson and the others meant to forbid secession, they definitely would have said so, and the omission of a prohibition on secession in the Constitution is strong proof that the right of secession existed and was assumed.9
He quotes James Madison in The Madison Papers who wrote "a breach of any one article by any one party, leaves all other parties at liberty to consider the whole convention as dissolved."10
Vermont and Massachusetts, he points out, nullified with statutes the Fugitive Slave Law of 1793 and those two breaches of the compact alone were enough for the South to consider the compact dissolved.
There were many other violations of the Constitution discussed throughout the secession debate in the South including Northern Personal Liberty Laws that, in effect, nullified the Fugitive Slave Law of the Compromise of 1850 as well as Article IV, Section 3 of the Constitution, which dealt with fugitive slaves. At least ten Northern states had statutes that nullified the two aforementioned laws.
Other breaches of the Constitution included the harboring of fugitives from justice in the North, specifically two of John Brown's sons who were with Brown at Harpers Ferry and were wanted in Virginia for murder. They were being harbored in Ohio and Iowa.
Brown himself had been backed by Northerners and financed with Northern money.
Fanatical abolitionists with the acquiescence of states like Massachusetts tried desperately to destroy "domestic tranquility" in the South by sending incendiary abolitionist material in the mail encouraging slaves to revolt and murder.
There is also, as mentioned earlier, the Republican endorsement of Hinton Helper's The Impending Crisis of the South, which called for the throats of Southerners to be cut.
The Republican Party was not a great movement trying to end the difficult slavery problem with good will. Their ranks included murderers and promoters of state-sponsored murder and terrorism.
They knew how to end slavery if that had been their desire. They had ended it in the North with gradual, compensated emancipation, which was Lincoln's strong belief and approach, and the method used by most countries on earth.
Ending slavery was not the Republican desire.
No Republican could be elected suggesting that Northerners spend their hard-earned sweatshop money to free the slaves in the South who would then come North and be job competition.
Control of the government for their own wealth and commercial empowerment was the Republican desire.
Hate was simply a tool to help them get there.
To prove the right of a state to determine for itself when the Constitution had been violated, Morse quotes Jefferson's Kentucky Resolutions, which point out that if the government had the right to determine when the Constitution was violated, then the government would be the arbiter of its own power and not the Constitution. The Kentucky Resolutions also reaffirm state sovereignty and independence.11
Morse demonstrates that congressional discussions and proposed legislation during the secession of Southern states indicated that Congress believed the right of secession to exist.
One piece of legislation was introduced to deal with the disposition of federal property within a seceding state as well as a seceding state's assumption of its share of the national debt. Another scrambled to forbid secession unless approved by two-thirds of the members of both houses of Congress, the president, as well as all the states.
Morse then points out that thirty-six years earlier, Chief Justice John Marshall, in Gibbons v. Ogden, wrote that "limitations of a power furnish a strong argument in favor of the existence of that power. . . ."12 Morse concludes:
What would have been the point of the foregoing proposed amendments to the Constitution of the United States prohibiting or limiting the right of secession if under the Constitution the unfettered right of secession did not already exist? Why would Congress have even considered proposed amendments to the Constitution forbidding or restricting the right of secession if any such right was already prohibited, limited or non-existent under the Constitution?13
Morse goes on to discuss the aforementioned conditional ratification of the Constitution by three of the original thirteen states, which specifically reserved for those states the right of secession. The states were Virginia, New York and Rhode Island.
Virginia referred to the wording of her conditional ratification of the U.S. Constitution in her Ordinance of Secession.14
Morse points out that since the other states, which had unconditionally ratified the Constitution, consented to Virginia's conditional ratification, then they "ostensibly assented to the principle that Virginia permissibly retained the right to secede."
He adds that with the additional acceptance of "New York's and Rhode Island's right to secede, the existing states of the Union must have tacitly accepted the doctrine of secession."
Further, Morse states that according to the Constitution, all the new states that joined the Union after the first thirteen also had the right of secession since new states entered on an equal footing with the exact same rights as the existing states.15
Southerners during the secession debate knew that Virginia, New York and Rhode Island had reserved the right of secession, thus all the states had the right of secession.
Senator Judah P. Benjamin, in his farewell speech to the United States Senate on February 5, 1861, said:
The rights of Louisiana as a sovereign state are those of Virginia; no more, no less. Let those who deny her right to resume delegated powers, successfully refute the claim of Virginia to the same right, in spite of her expressed reservation made and notified to her sister states when she consented to enter the Union.16
Morse skips forward to Reconstruction and points out that "the Northern occupational armies were removed from Arkansas, North Carolina, Florida, South Carolina, Mississippi, and Virginia only after those former Confederate States had incorporated in their constitutions a clause surrendering the right to secede." Morse then argues brilliantly that
by insisting that the former Confederate States surrender their right to secede, the United States government had implicitly admitted that those states originally had the right. How could they surrender a right, unless they had it in the first place?17
To summarize, Morse points out that before the war, under Virginia's conditional ratification of the Constitution, when the people decided that government power had been "perverted to their injury or oppression," they had the right to secede.
When Northern states passed Personal Liberty Bills and other statutes nullifying the fugitive slave laws of the Constitution (Article IV, Section 3), a "perversion" occurred which gave the Southern states the right to secede.
Reinforcing that perversion even further was the federal government's not forcing those Northern states to abide by the Constitution, therefore
the Northern States conceivably "perverted" national law to the "injury or oppression" of the people of the Southern States. Thus, the reassumption of the powers of government by the people of the Southern States was a natural consequence of the Northern States' conduct and the federal government's failure to prohibit that conduct.18
The only other issue, according to Morse, was whether the Southern states conducted their act of secession legally.
Morse points out that the people are the sovereign having supreme, absolute and perpetual power, therefore secession would have to be accomplished by the people of each state rather than their legislatures.
He says "convention delegates elected by the people of the state to decide one question constitute authority closer to the seat of the sovereign -- the people themselves," therefore a convention in each Southern state would be necessary as a "special agent of the people of the state."
Did the Southern States conduct themselves legally and therefore perfect their acts of secession and independence? Morse says:
When the Southern States seceded from the Union in 1860 and 1861, not one state was remiss in discharging this legal obligation. Every seceding state properly utilized the convention process, rather than a legislative means, to secede. Therefore, not only did the Southern States possess the right to secede from the Union, they exercised that right in the correct manner.19
Morse's conclusion is that
conceivably, it was the Northern States that acted illegally in precipitating the War Between the States. The Southern States, in all likelihood, were exercising a perfectly legitimate right in seceding from the Union.20
This article comes from The Right of Secession, Part II of Slavery Was Not the Cause of the War Between the States, The Irrefutable Argument. by Gene Kizer, Jr. (Charleston, SC: Charleston Athenaeum Press, 2014) available on this website.
End of Part One of Two
1 H. Newcomb Morse, "The Foundations and Meaning of Secession," Stetson University College of Law, Stetson Law Review, Vol. XV, No. 2, 1986), 436.
2 Judah P. Benjamin, "Farewell Address to the U.S. Senate" delivered February 5, 1861, in Edwin Anderson Alderman, and Joel Chandler Harris, eds., Library of Southern Literature (Atlanta: The Martin and Hoyt Company, 1907), Volume 1, 318-319.
3 Merriam-Webster online definition of "secession," http://www.merriam-webster.com/dictionary/secession, accessed August 11, 2014.
4 Kenneth M. Stampp, The Imperiled Union, Essays on the Background of the Civil War (New York: Oxford University Press, 1980), 35-36.
5 The right of secession is like the bright sun in front of Professor Stampp's face but he can't (or won't) see it. He writes on page four of The Imperiled Union that "the Unionist case was sufficiently flawed to make it uncertain whether in 1865 reason and logic were on the side of the victors --" but he adds his obligatory disclaimer to cloud the issue by stating that we really can't tell "in the tangled web of claims and counter-claims" if reason and logic "were indisputably on either side." He says on page 11 that "In truth, the wording of the Constitution gives neither the believers in the right of secession nor the advocates of a perpetual Union a case so decisive that all reasonable persons are bound to accept it." At least Professor Stampp knew better than to deny the right of secession as he defends his guilty client.
6 In 1847, on the floor of the United States House of Representatives, Abraham Lincoln said:
Any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right, a right which we hope and believe is to liberate the world.
SOURCE: Abraham Lincoln, 1847 Congressional debate in the United States House of Representatives in John Shipley Tilley, Lincoln Takes Command (Nashville: Bill Coats, Ltd., 1991), xv. Tilley's source, as stated in footnote #4 on page xv, was Goldwyn Smith, The United States: An Outline of Political History, 1492-1871 (New York and London, 1893), 248.
7 Morse, "The Foundations and Meaning of Secession," 420.
9 There had to be a specific constitutional prohibition on secession for it to be illegal. Conversely, there did not have to be a specific constitutional affirmation of the right of secession for it to be legal because the 10th Amendment to the United States Constitution states:
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.
There was no constitutional prohibition on secession, nor was there a constitutional sanctioning of any kind of federal coercion to force a state to obey a federal law. To do so would be to perpetrate an act of war on the offending state by the other states, for whom the federal government was their agent.
10 James Madison, The Madison Papers (Philadelphia: 1840), 895, in Morse, "The Foundations and Meaning of Secession," 420.
11 Morse, "The Foundations and Meaning of Secession," 422-427.
12 Chief Justice John Marshall, Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), 200, in Morse, "The Foundations and Meaning of Secession," 428.
13 Morse, "The Foundations and Meaning of Secession," 428.
14 VIRGINIA: AN ORDINANCE to repeal the ratification of the Constitution of the United States of America by the State of Virginia, and to resume all the rights and powers granted under said Constitution.
The people of Virginia in their ratification of the Constitution of the United States of America, adopted by them in convention on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight, having declared that the powers granted under said Constitution were derived from the people of the United States and might be resumed whensoever the same should be perverted to their injury and oppression, and the Federal Government having perverted said powers not only to the injury of the people of Virginia, but to the oppression of the Southern slave-holding States . . . (Bold emphasis added.)
Adopted by the convention of Virginia April 17, 1861.
[It should again be noted that Virginia's secession had NOTHING whatsoever to do with slavery. Virginia, North Carolina, Arkansas and Tennessee seceded because of Lincoln's call for 75,000 volunteers to invade the South, which they viewed as illegal, unconstitutional and immoral. Virginia's action was immediate. A brief chronology is illustrative. The bombardment of Fort Sumter began April 12, 1861. Fort Sumter surrendered April 13th. Major Anderson, with full military honors, saluted his flag and marched out of the fort April 14th. On April 15th, Lincoln called for 75,000 volunteers to invade the South, and on April 17th, Virginia seceded. She was followed by Tennessee and Arkansas on May 6th and North Carolina on May 20th, thus the completion of the Southern republic.]
15 Morse, "The Foundations and Meaning of Secession," 428-32.
16 Judah P. Benjamin, "Farewell Address to the U.S. Senate" delivered February 5, 1861, Library of Southern Literature, Vol. 1, 318.
17 Morse, "The Foundations and Meaning of Secession," 433.
18 Morse, "The Foundations and Meaning of Secession," 433-434.
19 Morse, "The Foundations and Meaning of Secession," 434-436.
20 Morse, "The Foundations and Meaning of Secession," 436.