# Was the secession of the Confederacy legal? **URL:** \ **Category:** Cecil's Columns/Staff Reports\ **Created:** [May 16, 2008, 11:29am UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537 "2008-05-16T11:29:15Z")\ **Posts on this page:** 10\ **Page:** 4
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 6, 2008, 2:48pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/61 "2008-06-06T14:48:50Z")
> [@](#): > > Do you mean to say that the South would have gladly embraced a naked dictatorship, if that dictatorship was dedicated to preserving slavery? It’s a hypothetical question; the Confederacy was a democracy. But in my opinion, yes. I’m basing this one the fact that every time the southern states had to make a choice between slavery and something else, they chose slavery. I’d extend that and say that if they had to make a choice between democracy and slavery, they’d have again chosen slavery. In political terms, slaveowners in the pre-war south were the equivalent of lawyers in modern America. They’re only a small minority of the overall population but they dominate politics. So eliminating slavery would have caused the financial ruin of the same people who had political control. They weren’t going to agree to eliminate slavery if they thought they had any possible alternative, including secession and war. > [@](#): > > Could you post a link to the South Carolina declaration please? Sure. Here’s the [text](http://www.sonofthesouth.net/leefoundation/secession_causes.htm) of the _Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union_. [Here’s](http://en.wikipedia.org/wiki/Declaration_of_the_Immediate_Causes_Which_Induce_and_Justify_the_Secession_of_South_Carolina_from_the_Federal_Union) a Wikipedia article on the document. (I’ll disclose I’m the main author of this article. I also wrote most of the linked article on Christopher Memminger.) This is the section I referred to where the South Carolinians talk about states rights: > [@](#): > > The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution. The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them. In many of these States the fugitive is discharged from service or labor claimed, and in none of them has the State Government complied with the stipulation made in the Constitution. The State of New Jersey, at an early day, passed a law in conformity with her constitutional obligation; but the current of anti-slavery feeling has led her more recently to enact laws which render inoperative the remedies provided by her own law and by the laws of Congress. In the State of New York even the right of transit for a slave has been denied by her tribunals; and the States of Ohio and Iowa have refused to surrender to justice fugitives charged with murder, and with inciting servile insurrection in the State of Virginia. Thus the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation. The South Carolina argument was that slavery was guaranteed by the Constitution and therefore neither the federal government nor any state could pass any law which inhibited it. This clearly indicates which side they were on in a contest between states rights and slavery: slavery trumped states rights. > [@](#): > > If the Union had failed to suppress the rebellion, and at some point had had to give up, how would the Union legally regard the Confederacy? Would it have maintained a cold-war stance for decades of refusing to recognize it, like the US did towards communist China for twenty years? If the Union had signed a formal peace treaty with the Confederacy, would it nonetheless have internally retained the right to reconquer the South if it ever could someday? If the Union had formally recognized the Confederacy, how would it have reconciled the illegality of secession (under Union law) with such recognition? Again hypothetical questions. But in my opinion, the United States would have reconciled itself to Confederate independence if it had been won in the war. It might have taken a decade or two but the two nations were in too close a proximity and had too much common history for them to have remained enemies. Once the memories of the secession and the war faded, the similarities of the two countries would probably have brought them together. The United States and Great Britain reconciled after their wars and are now close allies. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 6, 2008, 2:59pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/62 "2008-06-06T14:59:54Z")
> [@](#): > > In their eyes slavery was synonymous with civilization itself, and banned the advocacy of abolition in much the same manner that proponents of radical anarchism would later be muzzled. This is true. Pre-war southerners did convince themselves that slavery was synonymous with civilization (I blame Calhoun for this). But they must have realized this was pretty weak reasoning. Considered as a logical premise, it meant that civilization had disappeared in Europe as well as throughout the northern half of the United States. Did any southerner in 1860 really believe that Cuba and Brazil were more civilized than England or France? Any rational southerner who was willing to think about it would have had to conclude that civilization was possible without slavery. Democracy and the rule of law could have (and in fact did) survive abolition. It was their economic not their political interests that were threatened. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [June 6, 2008, 3:03pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/63 "2008-06-06T15:03:35Z")
[QUOTE=Little Nemo] in my opinion, the United States would have reconciled itself to Confederate independence if it had been won in the war. It might have taken a decade or two but the two nations were in too close a proximity and had too much common history for them to have remained enemies. Once the memories of the secession and the war faded, the similarities of the two countries would probably have brought them together. The United States and Great Britain reconciled after their wars and are now close allies. [/QUOTE] I don’t doubt they would have reconciled; my question is how the North would have handled it’s internal legal issues of abandoning it’s claim to the southern states. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 6, 2008, 3:50pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/64 "2008-06-06T15:50:48Z")
I guess it would depend on the terms of the war’s ending. If it was just an open-ended armistice, it would include a de facto recognition of Confederate independence but not a de jure one - the United States would still be asserting a theoretical claim to the south while conceding it wasn’t going to enforce that claim. This would be similar to the state of affairs between mainland China and Taiwan. The alternative would be an actual treaty ending the war. If that were the case it would most likely include American recognition of Confederate independence. This would be similar to what happened between the United States and Britain after the American Revolution. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 6, 2008, 4:34pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/65 "2008-06-06T16:34:53Z")
If you go back through the history of the debates over secession you find what is today an interesting philosophical argument but then was a deadly serious conundrum. Secession is not mentioned at all in the Constitution, probably because the unification of the colonies into a single country required so many brutal compromises - most concerning slavery - that giving states a workable legal out would be throwing temptation into their faces. They almost certainly would have availed themselves of secession as early as 1808, when the 20-year prohibition against laws that would ban “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit” expired. The North won that battle but just a few years later the New England states seriously proposed secession because of their vehement opposition to what became the War of 1812. Southern politicians never let them forget that this was their response when the shoe was on the other foot. Secession talk never really ceased for the rest of the century; it merely got quieter and noisier. As positions hardened, so did the rhetoric. The rhetoric on both sides justified their positions but couldn’t have any real legal or even intellectual standing because there was literally nothing to back either side up. Was secession actively prohibited because no provision had ever been made for it or did the lack of explicitness leave the issue in a state of legal limbo until actually tested? That’s the philosophical argument. And that’s why I gave the carefully worded statement I did. > [@Exapno Mapcase](#): > > That’s exactly what everybody here has said. Since the Civil War nobody can argue successfully that states have a right to secede. The matter is settled. Testing the proposition brought forth a legal answer that everybody has agreed on since: that secession was always illegal. It did take the war to settle this, however. Secession occurred under Buchanan, not Lincoln. (Technically, seven states seceded before his inauguration, which then formed the Confederacy, all by February 1861.) Buchanan did nothing. It’s interesting to speculate what Lincoln would have done if the South hadn’t started a war, but like the several other similar questions asked here there’s no possible answer except what you feel like answering. Any such question depends entirely on the exact and complicated history that lead up to them. What would the North have done if? Well, it depends on things we can’t know about. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 7, 2008, 6:09am UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/66 "2008-06-07T06:09:01Z")
> [@](#): > > Testing the proposition brought forth a legal answer that everybody has agreed on since: that secession was always illegal. I still have to disagree. Legal issues are decided in legislatures and court rooms not battlefields. The American victory in the civil war just proved that the United States had a stronger army. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 7, 2008, 3:24pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/67 "2008-06-07T15:24:25Z")
No, testing it brought forth the legal decision by the Supreme Court in Texas v. White. The Court never would have considered the issue unless a secession had actually occurred. Again, secession happened without a war. The war came several months later, after a new government had been declared and was in de facto control of seven states. Without the war it would have been extremely difficult for the North to assert that secession was illegal ever after. For that matter, it would have been equally difficult for the Confederacy to tell its members that they couldn’t secede. The war’s outcome settled the matter, both de facto and de jure. It would have no matter what the outcome, because a successful breakaway by the South, whether because of a military victory or a truce, would also have set a precedent that couldn’t be ignored. Countries are not established in courtrooms; they are established on the battlefield (or in the aftermath of one). Until the Civil War, secession was always a possibility in any argument. Afterward it was not. The war settled that argument. ---
**Author:** ![Sailboat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sailboat/32/461_2.png) [@Sailboat](https://boards.straightdope.com/u/Sailboat)\ **Post date:** [June 11, 2008, 4:35pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/68 "2008-06-11T16:35:07Z")
[QUOTE=Alex\_Dubinsky] Arguing over this is stupid. The law clearly doesn’t apply. This was just revolution/subjugation, pure and simple. England lost, the North won. We didn’t spew some legal bullshit about how it was ok for us to say fuck you to England, so why are we spewing legal bullshit how it wasn’t ok for the South to say fuck you to us? [/QUOTE] This is an example of why discourse on the Internet has such a bad reputation. The fact that the Founding Fathers risked their very lives (“we must all hang together, or surely we will all hang separately”) to produce and sign a document explicitly arguing a legal basis for their revolution against England’s king – the already-cited Declaration of Independence – is so thoroughly drilled into American schoolchildren that I’m _completely baffled_ as to how someone on a board dedicated to fighting ignorance would apparently either forget or ignore it. And yet here we are. Sailboat ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [June 19, 2008, 5:43am UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/69 "2008-06-19T05:43:04Z")
> [@](#): > > **Little Nemo** : The South was hardly libertarian or democratic. They disenfranchised a substantial portion of their population and prohibited their liberty. I certainly agree with you. And the same was true of the North even during those rousing Revolutionary times. Unfortunately, the end of the Civil War and an end to slavery didn’t do enough to change that. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 19, 2008, 3:10pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/70 "2008-06-19T15:10:14Z")
> [@](#): > > This is an example of why discourse on the Internet has such a bad reputation. > > The fact that the Founding Fathers risked their very lives (“we must all hang together, or surely we will all hang separately”) to produce and sign a document explicitly arguing a legal basis for their revolution against England’s king – the already-cited Declaration of Independence – is so thoroughly drilled into American schoolchildren that I’m completely baffled as to how someone on a board dedicated to fighting ignorance would apparently either forget or ignore it. > > And yet here we are. You’re the one who missed the point. The Americans in 1776 and the Confederates in 1860 both felt they had reasons for secession and both produced written statements. The question is whether they had the legal right to secede under the laws of the country they were seceding from. The answer in both cases is no. It was illegal under British law for the colonies to secede. But they were successful in their secession anyway and so British laws no longer applied to them. It was illegal under American law for the southern states to secede. Their attempt to secede failed so they paid the penalty for their defiance of the law. If the CSA had succeeded in winning its independence and at some future date, Florida or some other state had tried to secede from the Confederacy, then Richmond would undoubtedly have declared that secession illegal and attempted to stop it. [Previous page](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537.md?page=3)