by Charles Adams
Buffalo , New York
March 1998
When Chairman Gorbachev was faced with the secession from the Soviet Union of a number of its captive republics, at first, the use of force to prevent secession was to be his response. President Bush and many of the Western powers responded to that possibility with consternation, only to be told by Gorbachev that the American Civil War gave him ample authority to use force to preserve the Union in Russia as Lincoln had done to preserve the Union in America. To that, President Bush replied, the situations were not the same. They weren’t? Of course they were. The issue was in the United Nations Charter and it was called the right of the self-determination of peoples. This right had its roots in the Declaration of Independence, which was dedicated to the proposition that governments derive their just powers from the consent of the governed. In the end, Gorbachev accepted that proposition; Lincoln did not.
Lincoln proclaimed that the states had no right to secede and that had been settled by President Andrew Jackson during the nullification crises of the 1830s. Lincoln was not known for being knowledgeable about history, or even about the Bill of Rights or the Constitution. He was even more ignorant about the principles of international law and the law of nations. He wrote his thanks and approval to General Sheridan, while Sheridan was plundering civilian life in the Shenandoah Valley, for what were obviously war crimes under the law of nations. He went on to congratulate Sherman for his civilian devastation in Georgia and South Carolina. And today, one prominent Northern historian acknowledges that this destruction of civilian society proved that Lincoln was a brilliant war tactician; even though it produced undying hatred in the South for the names of Sherman and Sheridan, it did bring about a collapse of the Confederacy and thus ‘preserved the Union.’
The nullification crises during Jackson’s administration didn’t really settle anything, and certainly not the question of secession. Nullification meant the right of a state to nullify a law of Congress that violated the Constitution. It was first proposed by some of the Founders of the federation. But nullification and secession are different matters, and this was pointed out by President John Quincy Adams in 1839 when he gave the keynote address at the 50th Anniversary Jubilee of the Inauguration of George Washington as President. President Adams ridiculed the right of a state to nullify an act of Congress—that was for the Supreme Court, not the states. But on the right of secession, Adams was fully supportive with these words:
If the states ever lost their fraternal affection, gave way to cold and indifference, or a collision of interest should foster hatred, and the bonds of political association should sever, it would be far better for the people of the disunited states, to part in friendship from each other than to be held together by constraint.
President Jefferson also recognized the right of secession, as did a host of others. After the Louisiana Purchase there was considerable national anger and talk of secession in the West. In response to this threat, Jefferson wrote:
"Let them part by all means if it is for their happiness to do so. It is but the elder and the younger son differing. God bless them both, and keep them in Union if it be for their good, but separate them if better. "
When Lincoln cited Jackson’s era as proof that no state could secede from the Union, one wonders to what he may have been referring. It was just another example of Lincoln’s logic, which in this case, made no sense and was a gross historical error. Secession had nothing to do with the nullification crises and didn’t really become an issue until South Carolina seceded in December of 1860. At that time a host of Northern as well as Southern editorials seemed to say that the right of a state to withdraw from the Union if its people wanted to do so, was a self-evident truth. One example is the following November 21 editorial in the Cincinnati Daily Press:
"We believe that the right of any member of this confederation [the federal Union] to dissolve its political relationship with the others and to assume an independent position is absolute—that, in other words, if South Carolina wants to go out of the Union, she has the right to do so, and no party or power may justly say her nay. "
This was before Lincoln’s day. Within a year, no such editorials could be found, as newspapers that espoused such heresy, like heretics of the past, were silenced by Lincoln’s military tribunals—the presses were shut down and the writers jailed for the duration of the war. Any brief study of totalitarian regimes throughout history will reveal that the first act of every dictator is to shut down the press and stifle criticism. Hitler did it, the Communists have done it everywhere, and so did Lincoln. That is why it is enshrined in the Bill of Rights as the very first Amendment. As with the other aspects of civil liberties guaranteed by the Constitution, Lincoln was quick to toss them out the window, and to toss the dissidents in jail.
But perhaps the most stinging criticism of all came from Judge George Comstock, of the New York Court of Appeals and a founder of Syracuse University—and a Unionist:
"If Mr. Davis is right as to all the circumstances and results flowing from separation, then the seceded states are the rightful possession of a perfect sovereignty . . . [the Civil War] was a war of invasion and conquest, for which there is no warrant in the Constitution, but which is condemned by the rules of Christianity, and the law of the civilized world. "
If the war against the South to force it to stay in the Union was as bad as this, how did (and still do) Northern apologists escape condemnation? I’ll explain in a follow-up article.
Contributed by Charles Adams
Buffalo, New York
May 1998
I n 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.
Charles Adams is a historian and the author of Beyond Good and Evil: The Impact of Taxes on the Course of Civilization. See review of his latest, Those Dirty Rotten Taxes: The Tax Revolts that Built America, on p 11 (‘Taxman’).