The Right of Secession
Part Two of Two
by Gene Kizer, Jr.
The Southern States unquestionably had the right to secede from the Union. That Southerners lost a catastrophic war, which, if it occurred today, would count 8.7 million dead and 10 million wounded, only glorifies and enshrines in the annals of human history, the courage of Southerners and their commitment to democracy, self-government, the Founding Fathers, and especially the Declaration of Independence with its assertion that governments derive their just powers from the consent of the governed.
Other direct evidence of the right of secession abounds.
Albert Taylor Bledsoe wrote in 1866 what is thought to be the best book ever written on the right of secession: Is Davis a Traitor; or Was Secession a Constitutional Right Previous to the War of 1861?
Richard M. Weaver, who was during his lifetime a professor and author of several noted books on the South, called Is Davis a Traitor "the masterpiece of the Southern apologias."1 Weaver described it as a "brilliant specimen of the polemic" out of the entire "extensive body of Southern political writing."2
Clyde N. Wilson, Emeritus Distinguished Professor of History at the University of South Carolina, editor of The Papers of John C. Calhoun, and author of many outstanding books, essays and articles, goes even further.
In the Introduction to a 1995 reprint of Is Davis a Traitor, Dr. Wilson lists the top seven books defending the South and the right of secession and says "Bledsoe did it first and best," his argument for the right of secession being "absolutely irrefutable to any honest mind."3
Bledsoe was born in Frankfort, Kentucky in 1809. He graduated from West Point in 1830 and had been there part of the time with Robert E. Lee, Jefferson Davis, Leonidas Polk and Albert Sydney Johnston.
He loved mathematics and theology, but practiced law for nine years in Springfield, Illinois as part of a bar that included Abraham Lincoln and Stephen A. Douglas.
Bledsoe faced Lincoln in court several times and "it was said that Bledsoe won six out of eleven cases tried against Lincoln." Also, Bledsoe had given Lincoln lessons, at one point, on using a broadsword because Lincoln had been challenged to a duel.4
After his legal career, Bledsoe taught astronomy and mathematics at the University of Mississippi, acquiring a "legendary" genius for mathematics. In 1854, he began teaching mathematics at the University of Virginia.
During the war, Bledsoe served briefly as the colonel of a regiment of infantry from Virginia, then later in the Confederate War Department, and finally he was sent to Europe by President Davis on what is thought to have been a secret diplomatic mission to influence public opinion in Britain.
After the war, until his death in 1877, Bledsoe published The Southern Review in which he continued to argue the justice and truth of the Southern cause.5
Bledsoe began working on Is Davis a Traitor while in England and published it just after the war "as a part of the campaign of Davis's defense."
The Confederate President was in prison at Fort Monroe, a U.S. Army installation in Hampton, Virginia where he spent a miserable two years waiting to be tried for treason.
He was in irons with a bright light shining in his cell twenty-four hours a day with guards marching back and forth. The bright light was an additional measure of vindictiveness since it was known that Davis had never been able to sleep except in total darkness.
Davis wanted to be tried for treason because he was confident he could prove the right of secession. In talking about the effectiveness of Is Davis a Traitor, Richard Weaver writes that
Bledsoe witnessed some practical result of his labor when Robert Oulds and Charles O'Conor, attorneys for Jefferson Davis, made use of the book in preparing their defense; but the Federal government, apparently feeling the weakness of its legal position, allowed the case to be dismissed.6
Here was the North's big chance to prove the South wrong once and for all in a solemn, dignified court of law in the eyes of the world and for all of posterity, but they refused to take it. Why?
They certainly had not suddenly had a change of heart toward the South. It was Reconstruction, the body of the assassinated Lincoln was barely cold in the ground. South-hating radical Republicans held great sway in Congress. Northern troops were in charge of most Southern states while large numbers of former Confederates were disenfranchised.
This was exactly the time the Federal Government would have wanted to convict the Southern president if it had a case. It was willing to kill hundreds of thousands of Southerners on the battle field so there can be no doubt it would have relished humiliating Jefferson Davis in a courtroom.
But the Federal Government knew it would lose so it dropped its case.
The Federal Government, like that embodiment of the North, Horace Greeley, knew there was an absolute right of secession. The Declaration of Independence is very clear.
There were no treason trials against any former Confederates because any one trial would prove the right of secession, and imminently practical Northerners were not about to lose in a court of law what they had won on the battlefield.
Bledsoe's "irrefutable" argument in Is Davis a Traitor begins with the Constitution as a compact or legal agreement among the members to the compact.
The reason Bledsoe starts here is because any member that has acceded to (agreed to) the terms of a compact, can secede from that compact if the terms are broken by one of the other members. This is exactly what Morse said as well.
Bledsoe produces the writings and statements of the strongest opponents of the Constitution as compact -- Daniel Webster and others -- who have admitted that if the Constitution is a compact, then states can secede from it.7
Webster was the great spokesman for the North with the credibility and reputation to go along with it. Bledsoe writes:
Thus, the great controversy is narrowed down to the single question -- Is the Constitution a compact between the States? If so, then the right of secession is conceded, even by its most powerful and determined opponents; by the great jurist, as well as by 'the great expounder' [Webster] of the North.8
If the Constitution was a compact, the North had clearly broken specific terms of the compact.
As Morse stated earlier, Northern states had statutes on their books nullifying constitutional and congressional laws with regard to fugitive slaves.
Many in the North believed, as William H. Seward stated, that they were operating according to a "higher law" than the Constitution therefore the Constitution meant nothing and did not have to be obeyed.
The more radical had long called the Constitution a "covenant with death and agreement with hell."9
How could the North be trusted if they were going to violate the Constitution at will?
The reason for breaking the law does not justify breaking the law. If one doesn't like a law, one has to change the law, not break it. Breaking laws according to a "higher law" is what ISIS and the Taliban do.
Men and women who believe in the rule of law do not break the law. They change the law when it needs changing.10
If somebody breaks the law, they are no longer trustworthy and other parties are not obligated to remain in any arrangement with them.
The North's having clearly broken the compact guaranteed that secession was legal if the Constitution was a compact that was "acceded to" by the original makers.
Did the original states "accede" to a compact?
Webster railed against the Constitution as a compact. He said that saying "the States acceded to the Constitution" was "unconstitutional language."11 Discrediting the single word, "accede," was very important to Webster.
So Bledsoe researched in great detail the words of the Founders and finds that in the Constitutional Convention of 1787, "Mr. James Wilson . . . preferred 'a partial union' of the States, 'with a door open for the accession of the rest.'"12
However, "Mr. Gerry, a delegate from Massachusetts, was opposed to 'a partial confederacy, leaving other States to accede or not to accede, as had been intimated.'"13
Father of the Constitution, James Madison, "used the expression 'to accede' in the Convention of 1787, in order to denote the act of adopting 'the new form of government by the States.'"14
Virginia Governor Randolph, also at the Convention of 1787, said "That the accession of eight States reduced our deliberations to the single question of Union or no Union."15
Patrick Henry had said that if the Constitution "be amended, every State will accede to it."16
Mr. Grayson asks if Virginia will gain anything from her prominent position "by acceding to that paper."17
Benjamin Franklin, whom Bledsoe says was next in importance at the Constitutional Convention to Washington, later said "Our new Constitution is now established with eleven States, and the accession of a twelfth is soon expected."18
George Washington, as he watched states join the Constitution, said "If these, with the States eastward and northward of us, should accede to the Federal government . . .".19
Chief Justice John Marshall used the word "accede" in reference to joining the Constitution, and even Mr. Justice Story, a staunch opponent of the belief in Constitution as compact, said "The Constitution has been ratified by all the States; . . . Rhode Island did not accede to it, until more than a year after it had been in operation;".20
Webster had attacked the word "accede" as something invented by proponents of the Constitution as compact.
Bledsoe points out that Webster's attack on "accede" by calling it a "new word" was totally incorrect because "accede" had been exactly "the word of the fathers of the Constitution" led by Washington. They had all used the word "accede" in reference to states joining the Constitution, and, of course, the converse of "accede" is "secede."21
Over and over Bledsoe demolishes each and every argument that maintains secession was not legal or a right.
He produces the words of the Founding Fathers specifically calling the Constitution a compact starting with the Father of the Constitution, James Madison. In the Virginia Resolutions of 1798, Madison states:
That this assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government as resulting from the compact, to which the States are parties.22
Bledsoe further mentions a letter from Madison to a Mr. Everett in 1830 in which Madison says that the Constitution is "'a compact among the States in their highest sovereign capacity.'"23
Bledsoe then convicts Webster using Webster's own words.
Webster had admitted that the Constitution was a compact in a debate three years earlier on "Foote's resolutions." Bledsoe says "that Mr. Webster himself, had, like everyone else, spoken of the Constitution as a compact, as a bargain which was obligatory on the parties to it." Webster had said:
[I]t is the original bargain, . . . the compact -- let it stand; let the advantage of it be fully enjoyed. The Union itself is too full of benefits to be hazarded in propositions for changing its original basis. I go for the Constitution as it is, and for the Union as it is.24
Perhaps the strongest argument against the right of secession is based on the words "We the people" in the Constitution's Preamble.
Those who argue that the Constitution is not a compact but is a national document, believe that "We the People" means all of the American people in one body and not in their sovereign states.
This, says Bledsoe, "is the great stronghold, if it has one, of the Northern theory of the Constitution. The argument from these words appears in every speech, book, pamphlet, and discussion by every advocate of the North. It was wielded by Mr. Webster in his great debate with Mr. Calhoun, in 1833, . . .".25
If the Constitution was written as a document for all of the American people in one body, then individual states had no right to withdraw from it.
The Committee on Style of the Constitutional Convention of 1787 was headed by Gouverneur Morris of Pennsylvania. Here's what Gouverneur Morris said is meant by "We the people," which he authored:
The Constitution . . . was a compact not between individuals, but between political societies [states], the people, not of America, but of the United States, each [state] enjoying sovereign power and of course equal rights.26
Morris himself believed in the right of secession and supported New England's move to secede during the War of 1812, which culminated in the Hartford Convention.27
Bledsoe quotes The Madison Papers and refers to some 900 pages of the proceedings of the Constitutional Convention of 1787 in which are recorded the debate over method of ratification.
He points out that nowhere in that vast record is there a discussion of the "people" as meaning the entire American people outside of their states.
The big debate was over whether the legislatures of each state would ratify the Constitution, or the "people" of each state in special convention.
It was decided that since a later legislature might rescind the ratification of an earlier legislature, it would be a more sound foundation to have the people of each state ratify the Constitution in special conventions called for the single purpose of ratification.28
That is exactly why the Southern States used conventions to secede.
The Constitutional Convention of 1787 had set the precedent when it decided that states should use the convention method to ratify the Constitution, and, as Mr. H. Newcomb Morse said in the Stetson Law Review, "not one [Southern] state was remiss in discharging this legal obligation" to use a convention of the people when it seceded from the Union.
The reason there is no listing in the Preamble of specific states ratifying the Constitution as had been done in the body of the Articles of Confederation is because nobody knew how many states, or which ones, would ratify the Constitution.
If all the states had been listed and one refused to ratify, then the document would be invalid. The number "nine" was decided on, as the number of states necessary to put the Constitution into effect, but, in debating the issue, it was brought up that the Constitution could only apply to those states ratifying it, therefore no references could be made to "all" of the American people.
Bledsoe writes that Rufus King suggested adding "between the said states, so as to confine the operation of the government to the States ratifying the same."29 The words were cleaned up and found their way into the Constitution in Article VII which starts out:
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
Bledsoe further clarifies:
[W]hen it was determined that the Constitution should be ratified by 'the Conventions of the States,' and not by the legislatures, this was exactly equivalent, in the uniform language of the Convention of 1787, to saying that it shall be ratified by 'the people of the States.' Hence, the most ardent friend of State rights, or State sovereignty, saw no reason why he should object to the words, 'We, the people of the United States,' because he knew they were only intended to express the mode of ratification by the States . . . in their sovereign capacity, as so many political societies or peoples, as distinguished from their legislatures.30
Bledsoe goes on by pointing out that the Federal Government had no legal right whatsoever to coerce a state into following its laws, therefore it had no right to force a seceding state back into the Union.
President Buchanan had stated in his lame duck period between Lincoln's election of November 6, 1860, and March 4, 1861, when Lincoln would be inaugurated, while state after state was seceding, that as president of the United States, he had no power to coerce a state, even though he denied that secession was legal.
Bledsoe notes the contradiction in Buchanan's position and writes "if we say, that coercion is a constitutional wrong, or usurpation, is not this saying that the Constitution permits secession, or, in other words, that it is a Constitutional right?"
He says "Coercion is unconstitutional . . . wrong . . . strikes down and demolishes the great fundamental principle of the Declaration of Independence: The sacred right of self-government itself."
About secession, he says "Secession, on the other hand, asserts the right of self-government for every free, sovereign, and independent State in existence."31
Bledsoe discussed the views of credible foreign observers and writes that Alexis de Tocqueville, in Democracy in America, said:
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 choose to withdraw from the compact, it would be difficult to disprove its right of doing so, and the Federal Government would have no means of maintaining its claims directly either by force or right.32
To Tocqueville, Bledsoe adds "Mackay, and Spence, and Brougham, and Cantu, and Heeren," then he goes on "as well as other philosophers, jurists and historians among the most enlightened portions of Europe, [who] so readily adopt the Southern view of the Constitution, and pronounce the American Union as a confederation of States."33
Bledsoe continues with more persuasive argument, the words of Thomas Jefferson and Alexander Hamilton, who assert, beyond doubt, that the Constitution is a compact and the states, sovereign.
He discusses William Rawl of Philadelphia and his book, A View of the Constitution of the United States, which stresses the right of secession and was used as a textbook at West Point for a while during the antebellum era.
He also mentions the States' Rights Hartford Convention of New England states, which strongly supported the right of secession, though it went way beyond its legal right to secede and actually aided the British in the War of 1812 thus becoming the most treasonous assembly in American history.34
As stated earlier, Horace Greeley, as the embodiment of the North, had thoroughly believed in the right of secession.
He had written in his New-York Daily Tribune on December 17, 1860, just as South Carolina's secession convention was starting, a brilliant editorial entitled "The Right of Secession." Here again, is most of it:
We have repeatedly asked those who dissent from our view of this matter to tell us frankly whether they do or do not assent to Mr. Jefferson's statement in the Declaration of Independence that governments "derive their just powers from the consent of the governed; and that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government," &c., &c. We do heartily accept this doctrine, believing it intrinsically sound, beneficent, and one that, universally accepted, is calculated to prevent the shedding of seas of human blood. And, if it justified the secession from the British Empire of Three Millions of colonists in 1776, we do not see why it would not justify the secession of Five Millions of Southrons from the Federal Union in 1861. If we are mistaken on this point, why does not some one attempt to show wherein and why? . . . -- we could not stand up for coercion, for subjugation, for we do not think it would be just. We hold the right of Self-government sacred, even when invoked in behalf of those who deny it to others . . . if ever 'seven or eight States' send agents to Washington to say 'We want to get out of the Union,' we shall feel constrained by our devotion to Human Liberty to say, Let Them Go! And we do not see how we could take the other side without coming in direct conflict with those Rights of Man which we hold paramount to all political arrangements, however convenient and advantageous.35
Horace Greeley and the North had it right until they realized their "devotion to Human Liberty" and belief in "those Rights of Man which we hold paramount to all political arrangements" meant nothing to them when compared to their money and power.
The "shedding of seas of human blood" was OK with them, and that is exactly what they got.
The Southern States unquestionably had the right to secede from the Union, as Horace Greeley just reiterated.
That Southerners lost a catastrophic war, which, if it occurred today, would count 8.7 million dead and 10 million wounded, only glorifies and enshrines in the annals of human history, the courage of Southerners and their commitment to democracy, self-government, the Founding Fathers, and especially the Declaration of Independence with its assertion that governments derive their just powers from the consent of the governed.
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 Two of Two
1 By "apologia," Weaver means a formal explanation and defense of a position, not an apology.
2 George M. Curtis, III, and James J. Thompson, Jr., eds., The Southern Essays of Richard M. Weaver (Indianapolis: LibertyPress, 1987), 152. Richard M. Weaver graduated from the University of Kentucky in 1932, earned an M.A. degree at Vanderbilt University, and a doctorate in English from Louisiana State University in 1943. He taught at the University of Chicago until his death in 1963. He wrote scores of essays and published several books. He is best known for his books Ideas Have Consequences, and The Ethics of Rhetoric.
3 Albert Taylor Bledsoe, Is Davis a Traitor; or Was Secession a Constitutional Right Previous to the War of 1861? (Baltimore: Innes & Company, 1866; reprint, North Charleston: Fletcher and Fletcher Publishing, 1995), Introduction to the 1995 reprint by Clyde N. Wilson, i-ii. The other six works that best defend the South and right of secession according to Dr. Wilson are the two-volume work A Constitutional View of the Late War Between the States by Alexander H. Stephens; The Rise and Fall of the Confederate Government by Jefferson Davis; A Defence of Virginia and Through Her of the South by Robert L. Dabney; The Creed of the Old South by Basil L. Gildersleeve; The Southern States of the American Union Considered in their Relations to the Constitution of the United States and the Resulting Union by Jabez L. M. Curry; and The Lost Cause by Edward A. Pollard.
4 Bledsoe, Is Davis a Traitor;, Introduction to the 1995 reprint by Clyde N. Wilson, i-viii.
6 Curtis and Thompson, eds., The Southern Essays of Richard M. Weaver (Indianapolis: LibertyPress, 1987), 153-154.
7 Taking on Webster also takes on most of the others who did not believe the Constitution was a compact because most of them quoted Webster and used his argument.
8 Bledsoe, Is Davis a Traitor;, 6.
9 Statement by the famous abolitionist, William Lloyd Garrison, publisher of The Liberator, who burned a copy of the Constitution and Fugitive Slave Act on the 4th of July, 1854, to cheers and hisses. Robert Toombs might have disagreed with Garrison but he respected Garrison. Toombs said Garrison believed what he said unlike the "political abolitionists" of the North who were in anti-slavery to vote themselves a farm or a tariff. Quotations from Garrison, Seward and others come from Bledsoe, Is Davis a Traitor;, 151-153.
10 And certainly the Fugitive Slave Law and similar laws were unfair with huge areas of unfair potential abuse, and they needed changing.
11 Bledsoe, Is Davis a Traitor;, 16, 12.
12 Bledsoe, Is Davis a Traitor;, 12-17.
21 Bledsoe, Is Davis a Traitor;, 17.
22 Bledsoe, Is Davis a Traitor;, 25.
24 Daniel Webster, on Foote's resolutions in Bledsoe, Is Davis a Traitor;, 25.
25 Bledsoe, Is Davis a Traitor;, 61.
26 Gouverneur Morris, Life and Writings, Vol. iii, p. 193, as quoted in Bledsoe, Is Davis a Traitor;, 64-65. Morris would have been even more clear if he had not capitalized "United." It is not capitalized in the Declaration of Independence which reads "The unanimous Declaration of the thirteen united States of America." Clearly that is what Morris is saying, that the individual sovereign states are "united" with equal rights and sovereign power.
27 Bledsoe, Is Davis a Traitor;, 64-65.
28 Bledsoe, Is Davis a Traitor;, 66-73.
29 Bledsoe, Is Davis a Traitor;, 72.
30 Bledsoe, Is Davis a Traitor;, 73.
31 Bledsoe, Is Davis a Traitor;, 154.
32 Alexis de Tocqueville, Democracy in America, as quoted in Bledsoe, Is Davis a Traitor;, 155. The reference to Democracy in America footnoted by Bledsoe is Vol. i, Chap. xviii., p 413.
33 Bledsoe, Is Davis a Traitor;, 157.
34 The New England states had threatened to secede many times such as with the Louisiana Purchase, the Mexican War, anything that added territory to the South that would dilute New England's political power. During the War of 1812, New England was deeply aggrieved over trade issues affecting commerce and shipping. They called the Hartford Convention and made plans to secede. The Hartford Convention (December 15, 1814 to January 5, 1815, in Hartford, Connecticut) quickly became the most dishonorable affair in American history. New England governors had deliberately sabotaged the American war effort by withholding troops and refusing to support the United States against Great Britain. Massachusetts' Gov. Caleb Strong refused to retake part of Maine captured by the British, then later sent a secret Massachusetts delegation to make a separate peace with the British. President James Madison was truly concerned that all of New England would make a separate peace with Great Britain. Shortly after the Hartford Convention, Massachusetts sent three commissioners to Washington, D.C. who arrived in February, 1815 to air their grievances but Andy Jackson and the Southern boys in New Orleans had already whipped the British and the war was over. The commissioners quickly returned to Massachusetts in disgrace. The Hartford Convention, thereafter became synonymous with treason since they had aided and abetted an enemy during war. The Federalist Party, which had supported the Hartford Convention, was all but destroyed, though it continued strong in Massachusetts for some years. See Hartford Convention, http://en.wikipedia.org/wiki/Hartford_Convention, accessed August 26, 2014.
35 "The Right of Secession," The New-York Daily Tribune, December 17, 1860, in Perkins, ed., Northern Editorials on Secession, 199-201.