The South Was Right

by James Ronald Kennedy

  In early 1820, before slavery had been seized upon by the North as an issue to use against the South and after the financial panic of 1819 and a House committee report of mismanagement and speculation by the Bank of the United States, a Kentuckian predicted that events would continue “. … with a steady pace, to civil war and dissolution of the union.”13 At about the same time, Thomas Cooper, president of South Carolina College, said, “We shall ere long be forced to calculate the value of our Union, to ask of what use is an unequal alliance by which the South has always been the loser and the North always the winner.”14

  In 1850 a little-known incident almost caused the secession of Texas from the Union ten years before South Carolina seceded. A dispute arose when a federal army officer called a convention to form the state of New Mexico on land that was claimed by Texas. Governor Peter H. Bell of Texas called for force to be used to maintain the integrity of Texas. War was averted by a compromise giving Texas ten million dollars and 33,333 square miles of land.15 The point is that this near war, in which the South had stood by Texas against the interests of the federal government, was not about slaves but about land claimed by Texas and the federal government.

  These two examples clearly show that issues other than slavery were at play in the United States even as early as 1820. These forces had been set in motion by the North as it advanced its general welfare at the expense of the South. Even at this early date, Southerners were expressing the need to separate from the North. Even if there had been no question about slavery, the North and the South would have been on a collision course. Either each region would have had to go its own way, or one region would have had to wage a war of aggression and conquer the other. The North chose war and subjugation.

  3. Lincoln was justified in using whatever force at whatever cost to save the Union.

  Only if one believes in the barbaric idea that the ends justify the means could it be maintained that Lincoln and the North had a right to do whatever was necessary to win the war and save the Union. If winning at any cost is justifiable, then men such as Saddam Hussein have the right to use poison gas or human shields as long as they are in pursuit of victory. The following quote may not sit well with those who think that might makes right or that the ends justify the means. It is taken from James Kent’s Commentaries on American Law. “No one nation had a right to force the way of the liberation of Africa, by trampling on the independence of other states; or to procure an eminent good by means that were unlawful; or to press forward to a great principle, by breaking through other great principles that stood in the way”16 [emphasis added]. Kent was making a point about the proper and lawful way to stop the slave trade. As he noted, we cannot, according to international law, break one law or principle even if we are pursuing a greater good. Kent’s textbook was used by the United States military cadets at West Point from 1826 through 1865.17 Such men as Robert E. Lee, Albert Sydney Johnston, Joseph Johnston, and Jefferson Davis were instructed on principles of international law by Kent’s textbook.

  Although Lincoln and his worshippers believe that no price was too great to save the Union, international law does not uphold that position. In the Le Louis case, British courts established that British vessels of war could not board a French vessel in search of slave traders even if that trade was deemed illegal by British and French law. This case reinforced the principle of free navigation. Only if the countries involved were under treaty obligation to police each other’s maritime fleet could one nation’s vessel of war stop and search a vessel of another nation during time of peace. The British court stated that the greater good of ending the slave trade did not give a nation the right to trample principles of international law: “The right of visitation and search, on the high seas, did not exist in time of peace. If it belonged to one nation, it equally belonged to all, and would lead to gigantic mischief, and universal war.”18 So, according to internationally recognized principles, the ends do not justify the means. Lincoln could not legally pursue the cause of union at any price. Edmund Burke, in an address to the British Parliament entitled “Conciliation with the Colonies” (1775), stated that the use of force to bring the colonies back under British law was wrong because, “… you impair the object by your very endeavors to preserve it. The thing you fought for is not the thing which you recover, but depreciated, sunk, wasted, and consumed in the contest.”19 Burke declared that, to prove that the colonies should not be free, “… we are obliged to depreciate the value of freedom itself.”20 Lincoln erred as the British had done; that is, to save the Union, he was willing to “depreciate the value of freedom.” Without question, Lincoln and his fellow Northerners were acting outside of internationally accepted principles when they sought to coerce the South back into the Union.

  4. Secession is an act of a sovereign state, and no state in America was sovereign before or after the Declaration of Independence was signed.

  One fact that bothers the anti-secessionist more than any other is that the colonies acted as independent states before and after the Revolutionary War. Obviously, if the states did function as independent states and did freely enter into a compact with other free states, then only the states could judge for themselves how long they would stay in that compact or union.

  The anti-secessionist will throw up many smoke screens and try to dance around the idea that the colonies and then the states did indeed act as independent bodies. First the anti-secessionist will advance the theory that “sovereignty is indivisible,” and therefore the several states could not each be sovereign. The anti-secessionist will state that sovereignty resided in the hands of the British while the states were colonies, and it had to remain in the hands of the United States government after the colonies had gained their independence. The idea that all power or sovereignty must be in the hands of one agent and not divided among many is a throwback to the erroneous notion of the divine right of kings. This idea had effectually been refuted by British noteworthies such as Milton and Locke (see Chapter 5). Within the British empire sovereign authority was divided between Parliament and the monarch in the seventeenth century.

  The great fear among the American patriots of 1776 focused on the placement of too much power in the hands of government. The colonies and later the states always strove to prevent the accumulation of too much power in the hands of the few. This fear brought forth the idea of shared powers and a government of coequal partners. Each partner would share in the function of government; each partner was supreme in its own sphere, but the greater bulk of rights and power would always remain in the hands of the agent of the people, the state.

  So much for abstract theory. Regardless of what we may think about theory, the facts will speak absolutely on this matter.

  One anti-secessionist made this statement about the American colonies: “… [they] possess neither independence nor sovereignty nor any other attribute or form of authority commonly associated with states.”21 It is an easy matter to look at the history of the American colonies and see if they did indeed possess any attributes of a state.

  The following are some of these attributes. A state:

  1. Conducts war or pursues peace

  2. Makes laws to regulate society

  3. Taxes and spends tax funds

  4. Raises military forces

  5. Conducts relationships with sovereign nations.22

  If we can show that the colonies performed any of the above functions, then they cannot be said to have been lacking in those characteristics “commonly associated with states.” Proof that the colonies exercised the attributes of sovereignty will be taken from a textbook on Southern history entitled The History of the South written by F. B. Simkins.23

  In 1689, the British Parliament tried to exercise power, which had previously been held by the monarch, over the colonies. The colonies resisted and demanded that their legislative assemblies should be co-ordinate with Parliament; each within its own sphere should exercise sovereign authority. Parliament gave in to th
e demands of the colonies.24 Even at this early date, the clamor for State’s Rights could be heard. According to Simkins in The History of the South, every Southern colony, by 1700, had an elected legislature and had won two privileges from the British Crown: (1) the right to assent to laws and taxes, and (2) the right to initiate legislation. Here we see the colonies performing two major functions of a state: taxing and spending, and regulating society.25

  Even so, the anti-secessionist will tell us that these rights were instituted under the watchful eye of the governor of these colonies who was appointed by Britain’s monarch; therefore they were functioning as part of the sovereign British nation. But, according to the royal governor of South Carolina, James Glen (1748), “The people have the whole of the administration in their hands.”26 Yes, self-government has a long tradition in the South. Southerners insisted early in the colonial era on the right to govern themselves. Not only had Southerners elected their own legislatures in each colony by 1700, but also by early 1776 all royal governors had been removed from office and replaced by governors chosen by the people or their representatives. These actions all occurred before the Declaration of Independence was signed. The following is a list of the royal governors and the dates of their removal by the people of the South:

  1. Virginia governor John Murray Dunmore, June 1775

  2. North Carolina governor J. Martin, August 1775

  3. South Carolina governor W. Campbell, early 1776

  4. Georgia governor James Wright, January 1776 27

  Each of the Southern colonies was demonstrating the attributes of a sovereign state by changing the type of government under which its people would live. These actions were performed by a free people. The theory that the Declaration of Independence formed the Union and that this document called the states into being cannot be justified by historical facts.

  Let us look at more evidence to prove that the Southern states existed before the signing of the Declaration of Independence.

  In April 1776, the congress of Georgia had empowered its delegates to the Continental Congress to vote for American independence.28 Now, if the states did not exist before the Declaration of Independence, how could the state of Georgia empower its delegation to vote for American independence?

  The last straw to which the anti-secessionist will cling is the myth that in international matters the colonies always had to depend on either the British government or the Union. Sorry; wrong again! According to James Kent, in Commentaries on American Law, Vol. I, the only way the colonial congress could enforce the rule of international law was “… to have infractions of it punished in the only way that was then lawful, by the exercise of the authority of the legislatures of the several states.”29 Note that James Kent was from New York, and not a Southerner. Kent states that the only legal way to enforce the rule of international law was through the power of the individual states. We have now demonstrated that the Southern states have been active in the pursuit of the rights of free men since 1700. Before the signing of the Declaration of Independence the Southern states had exercised every attribute of a sovereign power. So much for another Yankee myth.

  If the colonies acted as independent states prior to the Declaration of Independence, how did they view themselves while adopting the United States Constitution? A glance at how Massachusetts expressed herself as far as her sovereign rights will demonstrate that even the Northern states considered themselves sovereign. Before it would ratify the United States Constitution, Massachusetts demanded “… that it be explicitly declared, that all powers not delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised.”30 Before it would adopt the Constitution, the state of Pennsylvania insisted upon the following amendment to the Constitution: “All the rights of sovereignty which are not, by the said Constitution, expressly and plainly vested in the Congress, shall be deemed to remain with, and shall be exercised by the several States in the Union.”31 Every state insisted that this and similar language be added to the United States Constitution, resulting in the adoption of the Tenth Amendment to the Constitution: “The powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.”

  We have now determined that the people of the states acted as sovereign and independent states before the Declaration of Independence and during the ratification process of the Constitution. Let us look at how these states perceived their role once they were in the Union.

  The anti-secessionists will tell you that state sovereignty never existed, and, if it did, it surely died with the adoption of the Constitution. Again, they are wrong. The state of New Hampshire adopted her state constitution in 1792, some three years after the United States Constitution went into effect. Yet note the strong assertion of state sovereignty placed into its state constitution, “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.”32 The people of New Hampshire, like the people of the other states, believed that they were members of an independent state (which, of course, they were). No one tried to accuse the people of New Hampshire of being “traitors” because they believed in State’s Rights.

  One last look at how the people of the states of America viewed their states in relation to the Union will show that the people did believe the states to be co-equal with the federal government and not subservient to the Union.

  Even after the adoption of the Bill of Rights, in 1791, the states were very jealous of the acts of the federal government (Union). Just six years after the adoption of the Constitution the states became enraged when the federal Supreme Court stated that Article III of the United States Constitution permitted states to be sued in federal courts by citizens of another state. The state of Georgia was then ordered to appear before the court (Chisholm v. Georgia). Georgia refused to appear, stating that the states were co-equal with the federal government, and therefore could not be compelled by the federal government to act against their will. The states of the Union were so incensed by the federal court’s action that the Eleventh Amendment was quickly passed. That amendment reaffirmed the sovereignty of the states by declaring that “The judicial power of the United States shall not extend to a suit against a State by citizens of another State.”33 Clearly the people of America at this time believed that the states were indeed independent and sovereign agents.

  5. The original thirteen states did not secede from the Union when they withdrew from the Articles of Confederation. The perpetual union under the Articles of Confederation is the same union under the United States Constitution.

  How embarrassing it is for those who oppose secession when they consider that nowhere in the Constitution is there a statement about perpetuity. It is doubly embarrassing when they note that there is a statement about perpetuity in the Articles of Confederation, the government that the states seceded from in order to form the government under the Constitution. The anti-secessionist will claim that the Union is the Union regardless of the type of government we have; therefore the Union is perpetual.

  A political union is an association of political entities for a predetermined purpose. The Articles of Confederation stated how the union of the states was to act and how it could be changed?34 Each state before it became a partner in this union had to ratify the Articles of Confederation. Note that in the body of the articles the statement that the only way this association could be changed was by the unanimous approval of the members of the union. When the states changed from a union under the Articles of Confederation to the Union under the Constitution, it was done not by unanimous approval of the states but by the approval of nine of thirteen states of the old union.35 With the approval of nine of the thirteen states of the old union under the Articles of Confederatio
n, a new type of association would then exist between only those states so ratifying the Constitution. This means that from one to four states would be under a different type of national government than the other nine. Can anyone pretend that those two groups were the same? Remember that North Carolina and Rhode Island did not join the new union for over a year after it had been in effect among the other states. They were treated as independent states. The union of states under the Articles of Confederation was disbanded by the secession of nine states from the articles. The states, in doing so, were acting as sovereign entities. They were not acting as states of the present Constitutional Union do when they ratify a constitutional amendment because such an act requires a three-fourths majority to pass, and the amendment becomes binding upon all states. Note that the act of ratifying the Constitution required the approval of each state, acting on its own, not in concert with anyone else, and that this act was binding only on the states ratifying the Constitution. The two unions could be considered the same only if the second union under the Constitution had the same member states and the same form of government as the first under the Articles of Confederation. This was not the case. No one ever suggested that the other states of the union had the right to wage war upon North Carolina and Rhode Island in order to “save the Union.” Why not? Because this was a new and different union, and each state had the right to decide for itself if and when it would become a member state.