Legality of Secession quotes
Email from Valerie Protopapas, 1/22/09 on Legality of Secession
For your consideration:
Elliott’s Debates, Volume V, p. 214:
“When the Constitution was outlined and read, the words Perpetual Union which had been in the Articles of Confederation were omitted. Alexander Hamilton and others noticing it, and desiring a Union, opposed the adoption of the Constitution. Someone moved to have it made a National Government, but this motion was unanimously defeated. Senator Ellsworth of Connecticut and Senator Gorham of Massachusetts have testified to this.”
Commentaries on the Constitution, Volume III, p. 287:
“The attributes of sovereignty are now enjoyed by every State in the Union.” - Alexander Hamilton
“The Thirteen States are Thirteen Sovereignties” - James Wilson of Pennsylvania
“Each State enjoys sovereign power.” - Gouverneur Morris.
“The Government was made by a number of Sovereign States.” - Roger Sherman
“The Thirteen States are Thirteen Sovereign bodies.” - Oliver Ellsworth
“The States are Nations.” - Daniel Webster
(Every one of these men were delegates to the Constitutional Convention except Daniel Webster.)
The Federalist, Chapter VIII, Nos. Xi, XXXIX:
“If it were a consolidated government the assent of a majority of the people would be sufficient to establish it. But it is to be binding on the people of each State, and only by their own separate consent.”
Alexander Hamilton, “The Federalist,” Vol. LX:
“If the Constitution is adopted (and it was) the Union will be in fact and in theory an association of States or a Confederacy.”
Daniel Webster, U.S. Senate, February 15, 1833:
“If the Union was formed by the accession of States then the Union may be dissolved by the secession of States.”
Benjamin Franklin, “Franklin Works”, Volume V, p. 409
“The States acceded to the Constitution.”
“If the Constitution is a compact then the States have a right to secede.”
George Bancroft, “History of the United States”:
“The States that gave life to the Union are necessary to the continuance of that life.”
“Rawle taught at West Point that the Union was an association of independent republics.”
Charles Francis Adams, “Constitutional Ethics of Secession,” pp. 16 & 17:
“William Rawle was an eminent Philadelphia lawyer and was twenty-nine years of age when the Constitution was adopted. He was, for many years, Chancellor of the Law Association of Philadelphia and principal author of the revised Code of Pennsylvania, and stood in the foremost rank of the legal luminaries of the first third of the century.”
James Madison on Secession and Self-Preservation:
When Madison discussed the conditions under which a state could secede from the Articles of Confederation, without the consent of the other states, he appealed to the natural right of self-preservation and to the principle that the safety and happiness of society were the objects to which all political institutions "must be sacrificed." Said Madison,
“The first question [how a state could secede without approval from the other states] is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. (Federalist Paper Number 43)”
Madison, often called “the father of the Constitution,” repeatedly explained that the people were sovereign, not as one mass, but as citizens of the various states:
“. . . this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.” (Federalist Paper Number 39)
In arguing for Virginia’s ratification of the Constitution, Madison said, “Give me leave to say something of the nature of the government. . . .Who are the parties to it? The people--not the people as composing one great body, but the people as composing thirteen sovereignties. Were it, as the gentleman asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment: and as a majority have adopted it already, the remaining States would be bound by the act of the majority, even if they unanimously reprobated it.” (Speech to the Convention of Virginia, June 6, 1788)
George Bancroft said:
“The Constitution was adopted first by States in Convention, each State acting for itself in its own sovereign capacity.”
Lord Brougham said:
“The devising of means for keeping its integrity as a federacy, while the rights and powers of the individual States are maintained entire, is the greatest refinement of social policy to which any age has ever given birth.
Daniel Webster, “The Federalist,” p. 908:
“If the states were not left to leave the union when their rights were interfered with, the government would have been National, but the Convention refused to baptize it by that name.”
Daniel Webster, Capon Springs Speech, in 1851:
“The Union is a Union of States founded upon Compact. How is it to be supposed that when different parties enter into a compact for certain purposes either can disregard one provision of it and expect others to observe the rest?
“If the Northern States willfully and deliberately refuse to carry out their part of the Constitution, the south would be no longer bound to keep the compact.
“A bargain broken on one side is broken on all sides.”
Daniel Webster in 1833 said:
“If a contract, it rests on plighted faith, and the mode of redress would be to declare the whole void. Sates may secede if a League or Compact.”
William Rawles, “A View of the Constitution”
The great early American constitutional scholar William Rawle said a state had the right to secede. Rawle was a contemporary of founding fathers Thomas Jefferson and James Madison and was appointed by George Washington as the first U.S. Attorney for Pennsylvania. Rawle’s book, “A View of the Constitution of the United States” was used as a legal textbook at a number of universities, including West Point, Dartmouth, and Harvard. To this day, scholars who debate legal issues relating to the First and Second Amendments refer to Rawle’s work.
On the issue of secession, Rawle said, “It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed. This right must be considered as an ingredient in the original composition of the general government, which, though not expressed, was mutually understood. . . .”(A View of the Constitution of the United States*, 2nd Edition, 1829, Vol. 4, p. 571)
(*Robert E. Lee told Bishop Wilmer, of Louisiana, that if it had not been for the instruction received from Rawle’s text-book at West Point he would not have left the United States Army and joined the Confederate Army at the breaking out of the War.)
South Carolina, 1788:
“In Convention of the people of the state of South Carolina, by their representatives, held in the city of Charleston. . . . The Convention, having maturely considered the Constitution, or form of government, reported to Congress by the Convention of Delegates from the United States of America. . . . Do, in the name and behalf of the people of this state, hereby assent to and ratify the said Constitution. . . .This Convention doth also declare, that no section or paragraph of the said Constitution warrants a construction that the states do not retain every power not expressly relinquished by them, and vested in the general government of the Union.” (South Carolina ratification ordinance, May 23, 1788)
“We the Delegates of the people of Virginia . . . declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination, can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes. . . .That each state in the union shall respectively retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.” (Virginia ratification ordinance, June 26, 1788)
“. . . all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised. (Massachusetts ratification ordinance, February 6, 1788)
The people of this commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent State, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them expressly delegated to the United States of America in Congress assembled.” (Constitution of the Commonwealth of Massachusetts, 1780, Article IV)
New York, 1788:
“We, the delegates of the people of the state of New York, duly elected and met in Convention, having maturely considered the Constitution for the United States of America . . . declare and make known. . . .That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution.” (New York ratification ordinance, July 26, 1788)
Rhode Island, 1790:
““We, the delegates of the people of the state of Rhode Island and Providence Plantations, duly elected and met in Convention, having maturely considered the Constitution for the United States of America. . . . declare and make known. . . .That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness. That the rights of the states respectively to nominate and appoint all state officers, and every other power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or to the departments of government thereof, remain to the people of the several states, or their respective state governments, to whom they may have granted the same; and that those clauses in the Constitution which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution. . . . The United States shall guaranty to each state its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Constitution expressly delegated to the United States.” (Rhode Island ratification ordinance, May 29, 1790)
Secession Was Not Rebellion
Thomas Jefferson, Kentucky Resolutions of 1798:
"...reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."
John C. Calhoun:
“A written constitution certainly has many and considerable advantages, but it is a great mistake to suppose that the mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted with the means of enforcing their observance, will be sufficient to prevent the major and dominant party from abusing its powers. Being the party in possession of the government, they will . . . be in favor of the powers granted by the constitution and opposed to the restrictions intended to limit them. As the major and dominant parties, they will have no need of these restrictions for their protection.
“The minor or weaker party on the contrary, would take the opposite direction and regard them as essential to their protection against the dominant party. But where there are no means by which they could compel the major party to observe the restrictions, the only resort left them would be a strict construction of the constitution. To this the major party would oppose a liberal construction, one which would give to the words of the grant the broadest meaning of which they were susceptible. It would then be construction against construction, the one to contract and the other to enlarge the powers of the government to the utmost. But of what possible avail could the strict construction of the minor party be, against the liberal interpretation of the major, when the one would have all the powers of the government to carry its construction into effect and the other be deprived of all means of enforcing its construction? In a contest so unequal, the result would not be doubtful. The party in favor of the restrictions would be overpowered. The end of the contest would be the subversion of the constitution; the restrictions would ultimately be annulled and the government be converted into one of unlimited powers.
“Nor would the division of government into separate and, as it regards each other, independent departments prevent this result . . . as each and all the departments and, of course, the entire government would be under the control of the numerical majority, it is too clear to require explanation that a mere distribution of its powers among its agents or representatives could do little or nothing to counteract its tendency to oppression and abuse of power.”
(quoted by Murray Rothbard in For a New Liberty)
Chief Justice of the United States Supreme Court, Salmon Chase:
“If you bring these (Confederate) leaders to trial, it will condemn the North, for by the Constitution, secession is not rebellion...His (Jefferson Davis') capture was a mistake. His trial will be a greater one. We cannot convict him of treason."
Dr. Henry Wade Rogers, Dean of the Law Department of Yale:
“When peace came it was found that the Articles of Confederation were weak, in that the Central government could not legally assume sovereign power – that power resided in those free, sovereign and independent States, and there was no delegation of any rights to a central head.
“It became necessary, therefore, to change the Articles of Confederation so that the States should be bought to cooperate, by realizing that the government should not be a perpetual Union, but an agreement by which certain rights were reserved for the Federal government, and certain rights were reserved for the State.”
Gene H. Kizer, Jr., “The Right of Secession”:
There is no evidence that secession was illegal or prohibited by the Constitution, and in fact there is almost overwhelming evidence to the contrary, that secession was a legal, constitutionally sanctioned act. Historian Kenneth M. Stampp, in his book The Imperiled Union, maintains that it is impossible to say that secession was illegal because of the ambiguity of the original Constitution as to state sovereignty and the right of secession. He points out that,
"…the case for state sovereignty and the constitutional right of secession had flourished for forty years before a comparable case for a perpetual Union had been devised," and even then its logic was "far from perfect because the Constitution and the debates over ratification were fraught with ambiguity." 
It appears that the original intent of an unquestioned right of secession was established by the Founders, took root and "flourished for forty years," then later a "perpetual Union" counter-argument developed out of political necessity when Northern states began realizing their wealth and power was dependent on the Union and its exploitation of the South.
There had to be a specific constitutional prohibition on secession for it to be illegal. Conversely, there did not have to be a specific constitutional affirmation of the right of secession for it to be legal. Why? Because the 10th Amendment to the United States Constitution states:
“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.”
There was no constitution prohibition on secession, nor was there a constitutional sanctioning of any kind of federal coercion to force a state to obey a federal law because to do so was to perpetrate an act of war on the offending state by the other states, for whom the federal government was their agent.
The arguments for the right of secession are compelling. There is the constitutional right based on the Compact Theory, and the revolutionary right based on the idea that a free people have the right to change their government anytime they see fit. The Compact Theory views the Constitution as a legal agreement between the states - a compact - and if any one state violates the compact, then the entire agreement becomes null and void. Northern states unquestionably violated the Constitution on a number of grounds including unconstitutional Personal Liberty Laws on their books, as well as by deliberately harboring fugitives from justice by protecting the sons of John Brown who were wanted by Virginia for murder at Harpers Ferry. Northern states also made a mockery of the Constitution's Preamble, which states clearly that the Constitution was established to "insure domestic Tranquility" and "promote the general Welfare." Certain prominent Northern leaders with the acquiescence of states like Massachusetts were utterly at war with the South and doing everything they could to destroy the domestic tranquility of Southern states by encouraging slaves to murder white people, poison wells, destroy property and commit other acts of rapine. John Brown himself had been encouraged and financed in the North.
The revolutionary right of secession is based on the Declaration of Independence and the philosophy of Thomas Jefferson and John Locke, that,
“…whenever any form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute new government...”
These words come directly from the Declaration of Independence. This passage was also used, verbatim, in South Carolina's Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union. A similar sentiment was expressed by Abraham Lincoln in 1847 on the floor of the United States House of Representatives:
“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, a most sacred right, a right which we hope and believe is to liberate the world.”
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Posted By: Joe Elia