The Secession Issue Revisited, (Part Two)
Contributed by Charles Adams
Buffalo, New York
In our last article (March-April, 1998 SP), we noted how Justice George Comstock, a prominent New York judge and founder of Syracuse University, correctly analyzed the issue of secession and its moral and international legal implications. Though an ardent Unionist, he wrote that if the States were sovereign, as the South maintained (and as did many in the North), then the war was a monstrous crime against the South, against Christianity, and against the Law of Nations! Could any Southerner have said it better or with sharper criticism? If a Southerner had made such a statement, he would have been branded a rabble-rouser in the extreme -- a nut case, a fanatic on the lunatic fringe. But this was a prominent judge in New York, well known and respected, who supported the Northern onslaught on the South. Hadn’t he got himself out on a limb that could easily be cut off?
We noted how the founders and several presidents, such as Jefferson and even John Quincy Adams, had recognised the right of secession, and that the Union would be maintained, if at all, by the good will of the member states. Coercion had no place in a democratic federation, unlike that used throughout history to hold empires and kingdoms together. Even Alexander Hamilton, an advocate for a strong national government, said: ‘To coerce a State would be one of the maddest projects ever devised. No State would ever suffer itself to be used as the instrument of coercing another.’
When Lincoln made his call for troops to invade the South he received replies essentially agreeing with Hamilton from the governors of six states. Here is one reply: ‘I regard the levy of troops made by the administration for the purpose of subjugating the states of the South as in violation of the Constitution, and a usurpation of power. I can be no party to this wicked violation of the laws of the country, and to this war upon the liberties of a free people. You can get no troops from North Carolina’(North Carolina Governor Ellis).
The rebukes from the six governors, citing the illegality of the requisition for troops, made no impact on Lincoln, who considered them all traitors. But what stands out here is that the reasons given for not sending troops to wage war on the Southern states were the same reasons given by the Founders, by Madison, Jefferson, Adams and others. The fact that it made no dent in the psyche of Lincoln might be explained by this observation made by his law partner: ‘He was the most secretively—reticent—shut-mouthed man that ever lived.’ That may explain why he avoided any discussion of the secession issue. He’d made up his mind for the benefit of the country, and that was the end of it. Dictator style. That explains why, contrary to the command of the Constitution, he refused to call Congress to debate the secession issue and decide what to do about it. By the time he did call Congress in July, three months after Fort Sumter, he had his army ready to invade Virginia with the battle cry, ‘On to Richmond.’
Historically, attempts to secede from empires and kingdoms have indeed meant war. The Scots and the Irish learned too well that painful lesson when they tried for centuries to break away from the English kingdom and the British Empire. But America supposedly was different. It was not founded upon the divine right of kings, but upon the principle of the self-determination of peoples; thus secession seemed to be a natural right of any state that by consent of its people joined the federation. They were not conquered colonies, but free and independent states, as expressed in the Declaration of Independence. Lincoln and his cohorts lived in a world of empire building. The democratic principle of government of the people, strangely enough, had not really soaked in. But English writers did see the irrationality of Lincoln’s position with respect to the American form of government. Soon after the war started, the London Times made this rather sad observation: ‘Democracy broke down, not when the Union ceased to be agreeable to all its constituent States, but when it was upheld, like any other Empire, by force of arms.’
The writer continued that the government in Washington was no different than the government in St. Petersburg—an autocracy preserving an empire. How, asked so many British writers, could a nation which professed a strong belief in government by the people, turn on its own citizens and deny them what it supposedly stood for! The Cornhill Magazine in London wrote: ‘With what pretence of fairness, it is said, can you Americans object to the secession of the Southern States when your nation was founded on secession from the British Empire?’
The Northern rationale for the invasion of the South, for coercing the Southern states back into the Union by force, like a conquered colony, goes like this: The Constitution in its preamble, uses the words, ‘we the people,’ not ‘we the states.’ Then the Articles of Confederation state that the union is‘perpetual’ and this carries over to the Constitution, even though the Constitution is silent on the issue. This means that once in the union, a state is in it forever, i.e. perpetually. This thinking amazed many European scholars.
After the war the Lincoln-appointed Supreme Court had a chance to put a judicial stamp of approval on the secession issue. Chief Justice Chase wrote the opinion that no state could withdraw from the Union using the above ‘logical’ analysis. The logic did not go unnoticed by James Bryce, whose two volume The American Commonwealth ranks with de Tocqueville’s great study. Bryce noted in 1888 that the logical process of the Chief Justice and those arguing against secession was a kind of mental gymnastics akin to Medieval Scholasticism, which, of course, ignored the right of self-determination and the observation of James Madison, father of the Constitution, that the founding document was ‘a compact of states in their sovereign capacity.’
Another great English writer, Lord Acton, wrote to Lee and sympathised with the Southern cause in these words, ‘It is bad to be oppressed by a minority, but it is worse to be oppressed by a majority.’ In the Union, this was the millstone around the South’s neck.
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