Part 5: The Issue of Secession
South Carolina had tolerated, what they considered to be, a bullying government which kept meddling with their states rights, so their state legislature passed a resolution which stated, “The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue.” They went on to list, as did the Declaration of Independence seventy-six years ago, their reasons for taking such drastic measures.
Some may claim the Civil War did not begin with the secession of South Caroline, instead it began when they fired upon Fort Sumter. I disagree. I believe the issue which forced South Carolina was an issue that was never settled completely during the Constitutional Convention, and came to a head forcing South Carolina to sever ties to the Union. In that respect South Carolina was much like Boston prior to the War for Independence; it was the first to feel threatened by a sovereign government, and the first to actively stand up against it. Eventually 11 states would leave the Union, splitting the nation in half.
Now if you think back to something I said earlier in Part 1, Alexander Hamilton feared a separation of the Union because the North would be small in comparison to the South. In addition to the Union’s reduction in size would also mean an accompanying loss of revenue for the federal government. Abraham Lincoln could not allow this to happen. He must have knew that for the government to survive the Union must survive, and the he was faced with the problem of how to accomplish that.
In 1862 Abraham Lincoln wrote a letter to Horace Greeley. In it he unequivocally stated his goal, “I would save the Union. I would save it the shortest way under the Constitution. The sooner the national authority can be restored; the nearer the Union will be “the Union as it was.” If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them. My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause. I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views.”
If there was any doubt in your mind that Lincoln is the great man who fought a war to abolish slavery, that right there ought to put an end to such thoughts. Lincoln’s only concern was keeping the Union intact. The question is, was he justified?
What is secession? One dictionary defines it as; “the action of withdrawing formally from membership of a federation or body, especially a political state.” The question brought about by, first South Carolina, then eventually ten other states, is stated simply as does the Constitution authorize a state to leave the Union, or does it grant the federal government the authority to force them to remain a part of it?
In truth, the Constitution itself makes no mention of whether the Union can or cannot be dissolved. There are but two references that might justify Lincoln taking the country to war to hold the Union together. The first of these is found in the Preamble to the Constitution which states that the purpose for which the document was written. Among the reasons was “…to form a more perfect union…” and “…insure domestic tranquility…” The other is found in Article 6, paragraph 2 and is commonly known as the Supremacy Clause. It states, ” This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land…” Those are the only two sections of the Constitution which come close to supporting Lincolns position, so let’s take a moment to look at both of them.
Before I state my belief I have to lay some groundwork, which means I’m going to have to go back in time to the Declaration of Independence and work forward from there. If you look back at the period leading up to the War for Independence, and compare it to the time just prior to the Civil War you will see that there are many similarities. Chief among those was the fact that the people, and the states felt that the government was infringing upon their state sovereignty and that their only recourse was to severe the ties that bound them together.
What is, if it isn’t a declaration of secession, the Declaration of Independence? The colonies, and that’s exactly what they were, colonies established by the permission of the King of England, were part of the British empire. They fell under the umbrella of its jurisdiction and protection. For all intents and purposes they were British territories. They were however granted some autonomy in how they ran their local affairs and governed themselves. But make no mistake, it was the King of England who ruled over them, being their sovereign, with Parliament being the ruling body, or government, which could legislate over them.
Remember though, this time in American History was a period when the Age of Enlightenment played a major role in the thinking of many in this country. That Age brought about a major shift in the thinking when it came to rulers and subjects. Although they understood the peril they faced, the colonists believed that their rights were not subject to the arbitrary will of a monarch…especially when they had no representation in the legislative process of the governing body…Parliament.
So in 1776, after a “…long train of abuses… ” the colonists declared their independence. The names of fifty six men appear on that document today, but they did not all sign it on the day the final copy was presented to the Convention that authorized Jefferson to write it. Once they did they realized the enormity of what they all had done. America, puny little America, had stood up to the largest empire on the planet at the time and told them to take a hike, that it wasn’t gonna push them around anymore. That took courage, a belief that they had exhausted all other options, and a strong belief that no matter the outcome that their decision was the right one.
The Declaration of Independence opens by declaring, “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, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
Yes it was an act of open rebellion against their government, but this document was also the finest declaration on the origin and state of human rights that has ever been produced. To paraphrase what Jefferson so eloquently said, the Declaration states that men have rights given them by their Creator, God. That governments are created by man to protect, not trample upon, those rights. That when government no longer does its job that the people can alter or abolish their government and establish a new one which better provides for their security.
The United States, as we know it today, was not created by this document. All the Declaration of Independence did was to declare to the King, and the entire world, that 13 united colonies were stating that the King of England had abused his position and authority and that, therefore, they were no longer bound to him as subjects, that they were free men. That is best summed up with words from the document itself, “…That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown…” Honestly, that’s all the Declaration of Independence was, a declaration of the 13 colonies to secede from the mother country.
Up until now the colonies considered themselves merely 13 states, united in a common cause…independence. That is why people misunderstand and misinterpret documents and the writings of our Founders, because the ability to understand simple grammar and sentence structure is beyond them. Take for example to two following examples; the united States of America and the United States of America. Upon first examination most people would presume that they are one and the same. They are not. In the first example united is a verb which is acting upon the noun, States of America. What this means is that the states are united in purpose. On the other hand, when the word united is written with a capital U it transforms the three words into a pronoun describing the 13 United Sates as a single entity.
It was not until the Articles of Confederation and Perpetual Union were written, and later ratified, that the pronoun United States of America was used. Up until then the Congress was merely a body of men who gathered together and could not accomplish anything at all unless the delegates to it got permission to do so by their State Legislatures. The States still held all the power and authority and had the delegates chosen to pass a resolution, or declaration against the will of their home states then all the states had to do was ignore it. The Congress had no real authority.
The Articles of Confederation were, I believe, more a wartime effort to give the states some sort of governing body that could run the war from one location without each state fighting as an independent nation against the British Army which occupied their territory.
The Articles of Confederation do say a few things though that are worth discussing, first is the very title itself. Most people have taken to calling them simply the Articles of Confederation. But the actual title is the Articles of Confederation and Perpetual Union. That right there implies that the union of states created by this document is perpetual, i.e. eternal, and cannot be severed or broken apart. This position is further verified in Article 8 where it states, “Every State shall abide by the determinations of the united states, in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual…”
However, there is something interesting in Article 2 of that document. Article 2 declares, “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” If you have ever read the Bill of Rights this is strikingly similar to the 9th and 10th Amendments.
One thing that is obvious though is a Section or clause within the Articles of Confederation which declared the document itself to be perpetual. There is absolutely no mention of an amendment procedure which would provide a means of fixing flaws in the system. Yet in 1787 that is exactly what happened, another convention was convened to amend the Articles of Confederation because it had become painfully clear that the document created a Congress that was woefully unable to perform the functions it was created to do.
So in May of 1787 delegates assembled together in Philadelphia, behind closed doors, sworn to secrecy, and set down to fix their flawed system. There were those in attendance who had a different objective. Instead of amending the Articles of Confederation a few wanted to trash the entire plan and start from scratch to create a stronger government more capable of performing the functions it was to be created for.
Creating a new system from scratch went far beyond the authority granted the delegates by their State Legislatures…yet that is what they decided to do anyway. From the outset there were those who did not like the idea of a Constitutional Convention. Rhode Island refused to send any delegates and later Patrick Henry would declare that “I smell a rat.”
I won’t go into detail about the various plans and compromises that were presented during that summer in 1787. The important thing to consider is this; the Articles of Confederation declared that the Union was to be perpetual. However during that summer in 1787 the delegates basically overstepped their authority and figuratively threw that document in the trash and wrote a new document outlining the system of government we know today.
The question you must ask yourself, and I have read arguments supporting both sides of this question, is since they did not amend the Articles of Confederation does that mean that the Union is, or is not considered perpetual? The Constitution itself makes no mention of it being a perpetual union. The only references that come close to even broaching the subject are the Preamble and Article 6. The Preamble is merely a declaration of intent, it states the purpose for which the document was being written. This is a fact later confirmed by Joseph Story in his Commentaries on the Constitution. So what was the intent? Well, the Preamble states “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
It is important that we discuss this in more detail. The Preamble does not state that it was an act of the government modifying itself to grant itself more power. Instead it was an act of the people creating a system of government with the powers which were granted within the text of the document itself.
Secondly, it states the purpose, to form a more perfect union, as well as establishing justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare, and securing the blessings of liberty. It does not, however, specifically state, as did the Articles of Confederation did, that the Union was to be perpetual.
So let’s look at this from the perspective of a timeline. First we have a document that declares it the right of the people to dissolve the bands which tie them to another body and to create their own system of government. Next we have a document that creates a Perpetual Union. Then we have a document that can be considered to either enhance that perpetual union, or to trash that belief and simply create a system of government to serve certain specific functions.
Like I said, I have read arguments from both sides of the subject as it pertains to whether or not the Union is perpetual. I support the belief that it was, and remains, the right of the people to shake off what they believe to be the chains of oppression, be it from any form of government…even one they created.
Now the following is important for you to understand. Thirteen years prior to the commencement of the Civil War Abraham Lincoln shared my belief that it was the right of the people to, for lack of a better word, secede. In fact, Lincoln himself stated, “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, most sacred right- a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to excercise it. Any portion of such people that can, may revolutionize and make their own, of so much territory as the inhabit.”
Yet once he became president Lincoln switched positions and said that the States that had seceded did not have that right. He intended to keep the Union together as a single entity, even if it meant that he had to do so by going to war. Now that I have provided a historical background on the issue of secession, what about the people of the country, what did they feel about the subject?
Secession was not first broached by South Carolina in 1860, it had been discussed before by other colonies prior to South Carolina actually doing it. As I have already told you, up to the time that the Southern States seceded, they held a political majority in Congress, and often held the presidency as well. This did not sit well with the Northern States. On three separate occasions the subject of secession was broached, not by the South, but by the North.
In 1803 Senator Timothy Pickering of Massachusetts declared, “I will rather anticipate a new confederacy, exempt from the corrupt and corrupting influence and oppression of the aristocratic Democrats of the South…” Pickering predicted “There will be…a separation…”
Pickering’s colleague in the Senate, James Hillhouse echoed those sentiments by saying, “The Eastern States must and will dissolve the Union and form a separate government.”
These leaders in the Senate felt that they had to separate from the destructive policies of the Democrats. The policies they objected to were enacted by presidents like Jefferson, and those who followed in his beliefs regarding the purpose for which governments should exist. These early New England secessionists adhered to the concepts that had been eschewed by Hamilton, and those who followed him. That is why I say the roots of the Civil War began all the way back at the beginning. It was an issue that caused a division in this country that had never truly been healed. It caused New Englanders to distrust, nay, even hate the Southerners, and it caused the Southerners to feel the same about the North. This early attempt at secession by the North was only one time that division cause problems for the concept of a perpetual union. The Civil War was when the concept that a state, in fact, did have the right to secede was to be tested.
In response to those who opposed his, and the Democratic Party’s views in general, Thomas Jefferson said the following in his Inaugural Address, “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”
In 1839, another president, John Quincy Adams, declared, “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 enamored by the magnetism of conciliated interests and kindly sympathies, to part in friendship from each other, than to be held together by constraint.”
Prior to South Carolina actually seceding from the Union a Frenchman by the name of Alexis de Tocqueville came to America to study us and our system of government. His research led to the classic book Democracy in America, wherein he writes, “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 no means of maintaining its claims directly either by force or right.”
In the proceedings by the states prior to the ratification of the Constitution each state held arguments both in favor of, and in opposition to the new government which the document would create if enacted. Once Virginia agreed to ratify it they wrote a declaration stating so, but they also included the following statement within their agreement, “…the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”
During the War of 1812 the state of Massachusetts declared that the government had not fulfilled its responsibility under the Constitution to protect it, so it declared that it was time to form a New England alliance of states separate from the remainder of the Union.
William Rawle, who wrote the book covering the Constitution that was used at West Point to educate military leaders, said the following about a states right to secede, “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 on 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…The states, then, may wholly withdraw from the Union…”
Those are all quotes from people in positions of authority who supported the belief that a state, or a group of states, held the right to secede from the Union should they feel that the government no longer served their best interests. It was commonly held that the Union was not perpetual, that it could be dissolved should a state choose to separate from it.
But what about the general populace, did they support this view as well? It’s hard to say what everyone was thinking back in 1860, but I can provide quotes from those who were interested enough about the subject to voice their opinions in their local newspapers.
On November 1, 1860, the Albany Atlas and Argus wrote, “We sympathize with and justify the South because their rights have been invaded to the extreme. If they wish to secede we would wish them God-Speed.”
On November 13 of the same year, the Bangor Daily Union wrote, “Union depends for its continuance on the free consent and will of the sovereign people of each state, and when that consent and will is withdrawn on either part, their Union is gone. A state coerced to remain in the Union is a subject province and can never be a co-equal member of the American Union.”
On the same day the Brooklyn Daily Eagle wrote, “Any violation of the constitution by the general government, deliberately persisted in would relieve the state or states injured by such violation from all legal and moral obligations to remain in the union or yield obedience to the federal government…let them [the Southern states] go.”
All I’m trying to say here is that it was believed, at least among some, that a state held the right to separate itself from the Union. If that be the case, then did Lincoln have the right, the authority to force those states which had seceded to remain in the Union?
In his first inaugural address Abraham Lincoln stated the following, “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.”
Lincoln brings up points that should be addressed. The first we must discuss is Lincolns mention of universal law. Universal law is explained as being concepts of legal legitimacy actions, whereby those principles and rules for governing human being’s conduct which are most universal in their acceptability, their applicability, translation, and philosophical basis. So let’s look at how universal law applies to secession. According to most states, and a good percentage of the people, it was acceptable for a state to secede from the union. Therefore was Lincoln adhering to, or opposing universal law when he went against the common belief that the states could secede should they choose to do so?
John Locke, in his Treatise on Civil Government had declared, “When any one, or more, shall take upon them to make laws, whom the people have not appointed so to do, they make laws without authority, which the people are not therefore bound to obey; by which means they come again to be out of subjection, and may constitute to themselves a new legislative, as they think best, being in full liberty to resist the force of those, who without authority would impose any thing upon them.” This was one of the principle beliefs held by the Founders when they sought to ‘secede’ from Britain. It was also considered a universal law, made the more so due to the fact that at the time it was still believed that the Constitution was only a document which outlined a system of government. It was the states that ratified it that gave it any power and authority over them. Therefore if they agreed to it, they could later choose not to and to separate from it.
Lincoln also said something which bears close examination. He declared that “It is safe to assert that no government proper ever had a provision in its organic law for its own termination.” When the Southern States seceded from the Union did their actions terminate the government established by the Constitution? No, by their seceding they merely stated that they no longer wanted to be a part of the Union upon which that government held authority over. It did not terminate its existence, it merely severed the bonds between them, as did the Declaration of Independence. The monarchy and Parliament did not cease to exist when the colonists gained their independence no more than the federal government ceased to exist when the Southern States seceded.
As Lincoln was so fond of using the word ‘imply’, what he implied is that the federal government is bigger and stronger than the governments of the individual states, and therefore the federal government is saying to the States that they did not have the right to secede and divide the Union in two. It was all coming back to the fear expressed by Alexander Hamilton during the Revolutionary War when the British had been attacking in the South while Washington sat idle in the North guarding New York. Could it be that Lincoln also understood this, that if the South were allowed to secede that it would prove a death blow to the government itself due to the loss of revenue that was derived from the tariffs imposed upon them? If so, then did Lincoln actually care about the survival of the Union, or did he care more about the survival of the government?
I suppose we will never really know. But these are the facts that I have learned regarding the events which, in my mind, led up to the Civil War. As the saying goes, the stage had been set, the actors in place. Both president Lincoln and his predecessor had made their decision that the South did not have the right to leave the Union, and the South had said they had. It was a powder keg waiting for a spark to ignite it, and that spark would come soon enough, and the resulting war would take the lives of more Americans than all our other wars combined.