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 Posted: Fri Oct 28th, 2011 11:10 pm
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Hellcat
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If it wasn't leagal in the 1860s, was it legal from 1810 to 1820? Because if it wasn't legal then, then the New England states were discussing committing an illegal act in 1814 when they met to discuss doing exactly what the Southern states did in 1860 and 1861. The only thing that ended their plans to secede was the end of the War of 1812, which caused them to think about seceding in the first place.



 Posted: Fri Oct 28th, 2011 11:26 pm
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Texas Defender
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Hellcat-

  You're exactly right. General Jackson's victory in New Orleans, which took place weeks after a peace agreement officially ended the War of 1812, further discredited the participants in the Hartford Convention, and effectively put an end to the Federalist Party as a major player in American politics.

The Hartford Convention

 

 



 Posted: Sat Oct 29th, 2011 01:51 am
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Hellcat
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The thing is to look at the number of times prior to 1860 when a state or states actually considered seceding. Even then the states all believed they had the right to consider it. 1814 you had NH, Mass., Vt, RI, and Ct (Maine didn't become a seperate state until 1820 all seriously considering it and even  going as far as sending a delegation to Washington to declare they were going to do so. The Nullification Crisis of 1828 to 1832 could have resulted in SC seceding thirty years sooner than it did. In 1844 in an editorial in The Liberatorr abolitionist William Lloyd Garrison said that it was time to secede from the government and on the same exact day his editorial came out the New England Anti-Slavery Convention voted to secede in order to break away from the slave holding states. 

Even during the 1860s the South wasn't the only place where secession was considered. California, or at least Southern California, considered doing so and forming it's own nation in 1860. And West Virginia seceded from the rest of Virginia during the war.



 Posted: Sat Oct 29th, 2011 02:12 am
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Texas Defender
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Hellcat-

  All of that is true. In the case of West Virginia, it was just one of a number of inconsistencies in the policies of the federal government. Their position was that it was illegal for states to secede from the federal government, but it was okay for counties to secede in effect from a state that no longer wished to be one of the United States.

  Thus, it would seem that the federal government's position on secession depended on who was trying to secede from whom.



 Posted: Sat Oct 29th, 2011 02:44 am
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Hellcat
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I have to think in part, TD, that after the war it was less bout the inconsistencies of the government and more about punishment. With what we've already discussed about states considering secedeing before the war, we should have heard of it being declared illegal before the war. But that it's declared illegal during the Reconstruction period raises some eyebrows.



 Posted: Sat Oct 29th, 2011 03:01 am
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Texas Defender
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Hellcat-

  I know that I'll never be able to put myself into the brain of a 19th century man, so my understanding of those times will never be perfect. But it is my guess that in 1869 the justices saw the case of Texas v. White as an opportunity.

  With one case, the justices could validate the sacrifices made by a martyred president and millions of soldiers and civilians that served the cause of preserving the Union. They could also discredit the case of those who had attempted to leave it.



 Posted: Sat Oct 29th, 2011 06:26 am
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csamillerp
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texas defender, are you a lawyer... if not you should consider looking into that career field, just saying.



 Posted: Sat Oct 29th, 2011 07:37 am
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Texas Defender
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csamillerp-

  One of my grandfathers was a lawyer, and my mother would have been delighted if I had chosen to follow him. But the legal field was not for me.

  My background was in the Army, in a branch more akin to the old cavalry than the JAG Corps. I retired long ago and now have as much time as I want to continue my lifelong study of my real passion, which is history.



 Posted: Sat Oct 29th, 2011 02:48 pm
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MildMan
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Texas vs White didn't make a new law, it was an interpretation of existing law, the constitution. Prohibition was a new law. So when it was put in effect, the rules were different from that time forward.

If Secession was legal, why not secede and bring the matter before the supreme court? if the supreme court said no, why not propose an amendment to the constitiutuon? I'm not buying that Lincoln could have prevented all discussion of legal secession - it was war that gave him his power. No war, no power.

I am not against secession - my point is that there was another way to get there. T



 Posted: Sat Oct 29th, 2011 03:37 pm
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Texas Defender
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MildMan-


  Apparently, the point that I was trying to make with the Texas v. White decision, and with ex post facto laws, was lost on you. Even though the justices said in 1869 that secession wasn't legal, it didn't make it a crime to do so in 1861. Thus, the 1869 decision didn't make those who seceded in 1860 and 1861: "Criminals" or: "Traitors" as you suggested in the 15th post on this thread.


  You go on and on with your contention that the southerners should have pursued the legality of secession in the federal courts. I gave my response to this in the 20th post on this thread. But, okay, we'll revisit it.

  First, I'll present an: "Old" law. Here is the Tenth Amendment:

  "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

  If I am a citizen of South Carolina in 1860, and I think it is to my advantage for my state to leave the Union, first I must ask myself if it is legal for my state to leave the Union. Therefore, I consult the Constitution of the United States.

  The question of secession is not mentioned anywhere in the Constitution. But I then come to the Tenth Amendment. Reading it, my first question is: "Is the power to rule on the question of secession delegated to the United States Government in the Constitution?" The answer to that question is: "No." My next question is: "Does the Constitution deny the right of secession to the States?" Again, the answer is: "No."

  I then ask myself: "Based on the answers to the above questions, does the state of South Carolina have a legal obligation to submit the question of secession to the federal court system for adjudication?" For those in South Carolina at that time, the obvious answer was: "No."

  In one of your earlier posts, you mentioned the possibility that you might be naive. Well, you might be if you believe that those in South Carolina should have filed a case in the federal court system, or that if the Supreme Court had been allowed to rule on it, it would have prevented Mr. Lincoln from attempting to exert federal authority over the states that were trying to secede.

  It might have been more difficult for Mr. Lincoln to take: "Emergency powers" if Ft. Sumter had not been attacked, but I believe that he would have done so anyway. Mr. Lincoln in my opinion had no intention of complying with any demand made upon him by the Judiciary. I base this opinion on his treatment of Chief Justice Roger Taney.

  Mr. Lincoln could have prevented the Supreme Court from even considering the case in the same way that his minions prevented any secession convention from ever taking place in Maryland. Or he might have simply ignored any decision that they made, just as President Jackson ignored the decision in Worcester v. Georgia.

  You are welcome to your opinion that South Carolina should have taken the matter to the federal court system, but the citizens there didn't think so. Nor do I.

Last edited on Sun Oct 30th, 2011 03:00 am by Texas Defender



 Posted: Sun Oct 30th, 2011 12:09 pm
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BHR62
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I've always kind of wondered if Lincoln had let the south go if eventually North and South would have reunited sometime down the road. How they would have settled the setting up of the western states after 1861. If that would have led to war as gold and other things were discovered. Another bad thing for the North was that the Mississippi River would be out of their control. The border states would have been forced to make a decision on North or South.



 Posted: Sun Oct 30th, 2011 04:05 pm
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Hellcat
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I don't think Maryland would have had the choice. Delaware and Wesr Virginia we know what happened there. Kentucky and Missouri did vote to secede in the fall of 1861. Maryland didn't really have much choice.



 Posted: Sun Oct 30th, 2011 07:44 pm
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Mark
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In the case of West VA, the federal government recognized the government in Charleston as the legitimate VA state government and then allowed them to vote to allow a new state to be created out of VA. The Federal government at least attempted to maintain a sense of constitutionality.

Mark



 Posted: Tue Nov 1st, 2011 07:53 am
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Cogswell Pepperbox
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Could someone clear this one up for me?

If the Federal Government decided that the secession of the Southern States was un-Constitutional and that those States had not, in a legal sense, actually seceded from the Federal Union, why was it necessary to have a legal process to "re-admit" those States ?



 Posted: Tue Nov 1st, 2011 02:01 pm
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Mark
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Cogswell: yes, I can clear that up in two sentences. The whole process of civil war was a messy ordeal that this country had not gone through before. There were many times between 1860 and 1877 when legalism had to give way to reality. Hope that helps.

Mark



 Posted: Tue Nov 1st, 2011 06:29 pm
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MildMan
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Good points Texas Defender and Hellcat.

You mentioned the Hartford convention, and this prompted me to do some reading. I knew you were right, that some New England states had discussed secession during the war of 1812 but I did not know the details. Consistent with your points, much of the discussion of the Hartford convention centered around rights reserved for the states and the “duty” of states to watch over their rights. There was also concern about the majority injuring the interests of the minority and Virginia born presidents dominating the federal government. While many details are different, the political points made are eerily similar to the ones made by the south before the war of 1861.

But take a look at this unedited quote on secession from the “Report and Resolutions of the Hartford Convention (1815)”.

http://en.wikisource.org/wiki/Report_and_Resolutions_of_the_Hartford_Convention

“Finally, if the Union be destined to dissolution, by reason of the multiplied abuses of bad administrations, it should, if possible, be the work of peaceable times, and deliberate consent.”

This would appear to validate my contention –US citizens, southerners and northerners, thought that proposing secession was a valid response to extreme abuses. However, they also noted that those who wished to secede should first attempt to do so peacefully and with consent (which I interpret to mean, legally).

It is also important to note that the Hartford Convention discussed secession, but it did not actually propose secession. Instead it proposed changes to the constitution to preserve and protect the power of New England states.

If southern rights were indeed being trampled upon, then discussion of secession and votes by citizens of those states to secede were valid responses. However, there was an alternative to war in 1861, legal secession, but Southern political leaders chose not to fully pursue it.



 Posted: Tue Nov 1st, 2011 06:37 pm
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MildMan
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Cogswell, I'm not sure that secession IS unconstitutional. It is not mentioned specifically in the constitution and there is that clause which i paraphrase, "powers not expressly given the to federal government belong to the states."

After reading some Texas vs White this decision seems like a back door approach to the issue.

It does not seem logical that a relationship, like participation in a union, cannot be altered for all of eternity. However, As I stated in my last post, I think that when we agree to be part of a government we are bound by the rules of law in that government. And If you don't like a law- change it! Pursue all legal avenues first.



 Posted: Wed Nov 2nd, 2011 02:15 pm
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Cogswell Pepperbox
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Well, whether or not secession is/was or isn't/wasn't legal under the Federal Constitution of 1789 is a different discussion. The Federal Government of 1861 did not believe it was legal and did not recognize the "right" of the States to secede; they did not recognize the Southern Confederacy as a nation, but labeled the action "insurrection" and "rebellion".

My question is, with that in mind, what then was the legal footing for the process of "re-admittance", if, in fact, those States had not legally seceded ?



 Posted: Wed Nov 2nd, 2011 02:16 pm
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Cogswell Pepperbox
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Also then, what was the legal footing, from a Federal point of view, for the secession of West Virginia from Virginia ?



 Posted: Thu Nov 3rd, 2011 03:57 pm
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HankC
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Cogswell Pepperbox wrote: Well, whether or not secession is/was or isn't/wasn't legal under the Federal Constitution of 1789 is a different discussion. The Federal Government of 1861 did not believe it was legal and did not recognize the "right" of the States to secede; they did not recognize the Southern Confederacy as a nation, but labeled the action "insurrection" and "rebellion".

My question is, with that in mind, what then was the legal footing for the process of "re-admittance", if, in fact, those States had not legally seceded ?


I may be wrong, but I think the general philosophy was that the Confederate states governments had ceased to exist and they had to show (via a checklist of requirements)  that they were in a position to re-engage in the national government...



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