"To Be Or Not To Be"

Did the 12 "Confederate" States legally secede from the United States of America, or was it indeed a bunch of rebels stirring up trouble?

By Hal Doby,
Webmaster Camp Wheeler
Last revision March 3, 2014

As a Son of the South, I have spent many discussions defending my State of Georgia and the Confederacy to my counterparts that take the view that the Civil was a nothing more than a rebellion. To that end, I have done a lot of investigation in my spare time over this issue. I feel a huge part of why people in the South feel as I do is because of our mutual opinion that our forefathers were not rebels, but rather freedom fighters that felt that they were fighting nothing less than a second American Revolutionary War.

For my purposes, this is not about the reasons behind the Secessionist Movement or the reasons why the Confederacy lost The War. This is about one very important issue that the whole issue of The War revolves around: Did the "Confederate States" act in a legal manner by seceding and later establishing the Confederate States of America? 

I am a natural-born skeptic and I’ve learned from a very young age to question everything I’ve been taught. Its not that I’m a conspiracy fanatic or “one of those nut-jobs” as they used to put it, but rather I’ve come to learn that History is not as black and white as some would have us to believe. It was wisely put long ago that to the victor, goes the spoils and when it comes to history, most of the time that includes writing the history books.

While I’m not equating the acts of the Union or South during the Civil War to the Nazis of the Twentieth Century, let me pose this to you. Adolf Hitler saw himself as a savior of the Germanic people. He saw himself fighting a good and righteous fight. Had the Third Reich won the war or at least had been able to achieve peace with the Allies, it would only had been logical that in German history books, Hitler would have been praised as a near demigod. Now granted, this is a extreme, but I think this is a valid point to show how history would have been written differently.

Taking the American Civil War down to its purest level, leaving all the politics of the day behind, it all comes down to one simple question; Did the "Confederate States" have a legal right to leave the United States of America? Because the Federal Union won The War, they, the Victors, then claimed there was no such right to secede and therefore the States remained in the Union. In their eyes, the War was an act of rebellion. But just because they said that, does not make it true.

I have been discussing this central point with my friends and associates from both sides of the issue. I have asked time and time again for anyone to show me where it was written prior to 1861 regarding either way if a State could legally secede. Over twenty years have passed since I first asked that question and so far not a single person, including academics have been able to provide me with one article of law regarding the question of legal secession.

All we have to go on is how the issue of secession was treated since the establishment of our Republic. Looking at the historical record, States, particularly the “New England” States repeatedly threatened to leave the Union when they felt laws were being crafted that was not in their best interests. At least twice, one or more of these States seriously threatened to secede. It was generally assumed that would happen, had it not been for the hard work to appease them by Senators and Congressmen from Georgia and the Carolinas. Even first-term Congressman Abraham Lincoln once spoke before the House in favor of a State’s right to secede. He 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 and most sacred right, a right which we hope and believe is to liberate the world."

The secession issue would raise its head several times prior to 1860, but each time it was quelled before any State actually seceded. Then during December 1860 South Carolina became the very first State to withdraw from the Union quickly followed by six more states. At that time, the majority of the population  and a good number of legislators felt that South Carolina had the right to secede from the Union. Over the following months, the United States government acted in a manner that was honoring the secession as each of the other States elected to secede.

As each State left the Union, federal workers were recalled and what could be transported back to the Union was relocated back to Union territory. Negotiations had commenced and plans were in place for a conference to be held in Washington D.C. for the newly-formed Confederate States of America to enter into discussions to pay the United States for its property that could not be moved, such as real estate.

Now to me, this tells me the United States Government had not only acknowledged the right of each State to secede, but it was acting in a manner that it indeed see secession as a legal act. Each side, Federal and Confederate, were both acting in a civil, cordial, and even jovial manner towards each other.

However, the newly-elected President, Abraham Lincoln, before he officially was sworn in as President, reversed his previous stance of "pro-secession" and adopted an anti-secession stance. He was willing to keep the Union together at any cost.

This brings up an interesting item to note. Of the 12 Confederate States, only 7 States initially seceded. President-Elect Lincoln made a call to arms in order to create a fighting force to hold the Union together. 5 Southern States that remained in the Union objected to Lincoln's call for force to hold the Union together. They clearly stated they were opposed to Lincoln’s actions, citing they felt the 7 seceded States acted in a legal manner through secession and they refused to go along with Lincoln’s war plans. When Lincoln refused their pleas to let the 7 States secede in peace, they too seceded. They seceded not because of slavery, or not because of the taxation issue. They seceded because they felt the 7 States were within their rights to secede and they refused be a party to use force against their brethren States, even though they were clearly aware their actions place them squarely in the middle of Lincoln’s war plans.

The historical record clearly shows that even before Lincoln took office, he began to draw up plans in which he prepared to use military force in order to bring the former States back into the Union. The majority of Union citizens were either ambivalent to whether or not the seceded States remained in the Union or else they felt they should be allowed to leave the Union in peace. When it came to the concept of going to war in order to emancipate Negros from Slavery, the clear majority was opposed to spilling “White Blood” for what they felt were an inferior race. Lincoln heard and understood this, but he felt that if he could get the Confederacy to fire the first shot, He could use that to his advantage by acting as the victim and then going in to quell the violent Rebels.

To that end, his plan was to provoke Confederate forces to fire upon Union forces that were ensconced in Confederate territory on his direct orders. This act clearly demonstrates that President Lincoln could not find a single law that made the secessionist movement illegal. Had Lincoln, being an experienced lawyer and former Congressman, found a legal precedence against secession, his case for taking up arms would have been all the more easy to do.

After four brutally hard years of war, the South finally capitulated and effectively surrendered to the Union (although there was no formal surrender of the Confederate States of America). It was Lincoln’s view and opinion that the States never left the Union and like a feuding family, it was time for all of us to come back to the family table as one.

All was to be forgiven and it was time to move on. But thanks to John Wilkes Booth, that never came to be. The Union politicians wanted to exact revenge on the former Confederates for the high cost in human blood the Union paid during The War. As General Sherman said his intention for his infamous "March to the Sea" was to make the Confederacy howl in pain. Where the supporters of President Lincoln wanted his wishes fulfilled, a radical faction of the Republican Party led the charge for the South to be treated as a conquered nation, and for the most part, they succeeded. When Lincoln was assasinated, Andrew Johnson from Tennesee became President. He too wished to carry on Lincoln's plan of reintegration, but was hobbled by the Republicans that wanted to exact revenge on the South. Eventually, he was brought up on impeachment charges and while he was indeed the first president to be impeached by Congress, his removal from office was foiled. Yet, Johnson became effectively a lame duck for the duration of his term in office.

After the fighting had ended, the legislative branch, led by the Radical Republicans in Congress, required each of the Confederate States to re-apply for statehood and each applicant had to be approved by a majority vote of the legislature. Each State, prior to re-admission into the Union had to pledge to an oath to the Federal Government. This more than anything else to me indicates that as far as the United States' government was concerned, all of the Confederate States had indeed left the union. You simply can’t re-admit anything that never left! Over the five years after the war, one by one, each of the former Confederate States was readmitted back into the Union with Georgia being the last re-admitted in 1870.

In the 150 years since the start of The War, there have been continual debates over this, yet there is only one instance in the legal record regarding secession. That was in an opinion rendered by the United States Supreme Court in its decision of Texas V. White back in 1868. Since this is the only ruling in regards to the legitimacy of secession, allow me to go into detail of this case and the court's verdict.

Texas had received $10 million in United States bonds in settlement of border claims as part of the Compromise of 1850. While many of the bonds were sold, there were still some on hand in 1861. Needing money, the legislature authorized the sale of the remaining bonds. Before the bonds were sold, a Texas Unionist notified the Treasury which ran a legal notice in the New York Tribune that it would not honor any bonds from Texas unless they were endorsed by the prewar governor, Sam Houston. Despite the warning, 136 bonds were purchased by a brokerage owned by George W. White and John Chiles.

After the Union-controlled/occupied state realized that it was no longer in possession of the bonds, it determined in its opinion that the bonds had been sold illicitly to finance the "rebellion" against the United States. In order to regain ownership of the bonds. the state filed a lawsuit under Article III, Section 2 of the United States Constitution which granted original jurisdiction to the Supreme Court in all cases "in which a State shall be a party." The case was filed on February 15, 1867. It appeared on the docket as The State of Texas, Compt., v. George W. White, John Chiles, John A. Hardenburg, Samuel Wolf, George W. Stewart, the Branch of the Commercial Bank of Kentucky, Weston F. Birch, Byron Murray, Jr., and Shaw, aka Texas V. White.

The court's opinion (with five justices supporting and three dissenting) was delivered on April 12, 1869, by Chief Justice Salmon Chase, a former cabinet member under Abraham Lincoln. In his decision, he wrote about how a state was a permanent part of the United States:

"When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States."

The opinion claimed that the State of Texas never left the Union and as such, the sale of the bonds was an illegal act that funded “The Rebellion”. The opinion continued on to state that the only instance that a State could legally secede was in the case of revolution, however, what had just transpired was a case of rebellion.

The way our government was established was that it was up to the Legislative Branch to create law, with the Executive Branch to enact and defend the laws of the land. The third branch of government, the Judicial Branch’s duty is to interpret the laws of the land and to make sure laws are indeed legally-binding when they are held up against the established rule of law. In most cases brought before the courts, from probate court all the way up to the Supreme Court, when prosecuting a case, the prosecution must present to the court what law was broken and then prove his or her case by presenting evidence that leaves no room for doubt that the cited law was indeed violated. When it comes to Texas V. White, this did not occur. Why? Because there is no law or no mention whatsoever in our Constitution of secession one way of the other! The finding was nothing more than opinion used to serve the purpose of making the federally-backed government case viable and winnable.

The court's opinion further stated that a State could leave the Union in a case of Revolution, but in this case, it was an illegal act of Rebellion. What is the difference between a rebellion and a revolution? When it came to the American Revolutionary War, to the British, we were rebels in a rebellion against The Crown. That is, until we won the war. Even then, to many we were still rebels, just as the Confederacy is viewed as a failed rebellion force by many today. I see exact parallels between the original Revolutionary War and the War Between the States, except this time, the "rebels" lost. So what am I to make of that? If you win, you’ve fought a revolutionary war, but if you loose, you’re nothing more than a rebellion? It sounds an awful lot like double-speak to me.

There is one more very interesting aspect of the Union's Post War actions. No Confederate Military Officer or Politician were ever brought to trial (military or civilian) for their actions against the Union. Even President Jefferson Davis or General Robert E. Lee were brought before a judge. This may sound odd, but there is a very good reason for that move.

The Union lawyers knew that any Confederate Officer that was put on trial would immediately defend his actions as the defense of his home State and Sovereign Country, the Confederate States of America. That would have been a very plausible defense that could have jurists decide in favor of the defendant. Had that occurred, it would have established a very serious presidence for the Union. Afterall, it was the Union that invaded Virginia and the soveriegn nation of the Confederate States of America. It could have been taken so far as to force the Union to relinquish the Confederate States so the C.S.A. could be re-established plus there could have been a demand for War Reparations as well!!! That was a dangerous risk the Union could not take, so no Confederate was ever brought to trial over the War.

Therefore, I believe the following can be deduced:

1.    There is nothing based in United States law that either allows or prevents a State from seceding. I can only deduce that our Founding Fathers never thought that any State would want to secede and therefore never put to paper anything regarding that. They were worried about forming the United States, not it coming apart.

2.     Besides the obvious rebellion against England, the 13 Colonies joined together in creating a Union that had a Federal Government in order to carry out three simple tasks:
                1. To create a common currency
                2. To promote intra and interstate Commerce
                3. To defend the borders of the Union.

3.    Until the War Between the States, most people felt their alliances were first to their home state, then  to the Union. State's rights were more important than Federal rights. No one talked about being an American, but rather to which State they came from. As part of that, it was common belief that each State had a base right in being able to leave the Union. The majority of Northerners was ambiguous about the issue and most felt if a State wanted to leave, let it. Above all, a majority did not want to go to war in order to hold the Union together by force. When the South was winning the War, the majority of Northerners wanted to press for peace, allowing for the Confederate States of America to continue to exist. It was only after the tide of war had turned in late 1863 did a majority of citizens begin to back Lincoln and thus allow him a second term.


4.    Once the States began to secede, the Federal Government acted in a manner that at the very least recognized secession and even acknowledged it by its action of returning Union personnel and assets back to Union soil. By agreeing to a summit to negotiate payment for Federal property located on Confederate territory further indicates the Union acknowledged secession as well as the Confederate States of America.

5.    After The War, the former Confederate States were ruled via Military governance and occupation. The States were not allowed representation in the Federal Government until each State applied and after being voted on, re-admitted back into the Union. This is my argument that proves my point: If a State never left the Union, why did it have to be re-admitted back into the Union? This act alone clearly demonstrates the Confederate States had indeed left the Union and were free to form their new nation.

6.    The Texas V. White ruling was nothing more than a partisan finding in order to further punish the South and members of the Confederacy. The decision of the court was not based on any specific law, period. Furthermore, as I pointed out in my fifth point, had the Federal Government followed what the Supreme Court had ruled, the re-admission of former Confederate States would have stopped immediately as they court ruled they never left the Union. Yet, the re-admission process continued until the last State, Georgia, was voted back in during 1870.

I think the bottom line is that the question of a State’s right of secession was never legally proved or disproved. It is just a contentious today as it was in 1861. I have yet to find anything that shows the Confederate States acted in an illegal fashion that would compel using force to return them to the Union.

To me, it all boils down to the Confederacy lost the war due to attrition. During and after the war, the Union claimed back the States as conquered territory and exacted a most cruel revenge upon it.

Because there is no precedence for secession, for or against, I’m afraid this will always be argued about over and over again.