THE LEGACY OF THE SOUTH ON SECESSION
AT THE BEGINNING OF THE TWENTY-FIRST CENTURY
John Remington Graham, B. A., LL. B.,
of the Minnesota Bar
On the 8th of August, 1787, the Philadelphia Convention considered how representatives in Congress should be distributed among the several States. It had been suggested by the committee on detail that there should be one representative for every forty thousand inhabitants. As we all know, this ratio was changed by the final draft of the Constitution eventually proposed and adopted. As soon as the proposition of one for forty thousand came to the floor of the convention, James Madison objected that, as the country grew in population, the suggested ratio would require too many representatives, and would before long become obsolete. Then rose Nathaniel Gorham of Massachusetts, a practical man of business who had served as president of Congress under the old Confederation, and was second only to George Washington as a presiding officer of the Philadelphia Convention, for he had been chairman of the committee of the whole for several weeks in May and June. He commented that the Union then being built would not last so long as to permit any rule they might devise for representatives in Congress to become obsolete. He asked the rhetorical question, “Can it be supposed that this vast country, including the Western territory, will, one hundred fifty hears hence, remain one nation?” Nobody in the convention believed that the United States Constitution would last more than one hundred fifty years. Everybody present assumed that the Union would sooner become too large and break up into parts. Gorham merely stated an obvious fact in the Philadelphia Convention, -- nothing shocking or unusual in the minds of those present. At the time of the Philadelphia Convention, it was so clear the Union would naturally be divided up in the foreseeable future that, during his first term as President, George Washington expressed misgivings that the Union was already too large, that the Northern States and the Southern States were too diverse in their interests to be fitted successfully in one Union, and that the Southern States would ere long withdraw from the Union and form a Confederacy of their of their own.2
Not only was the Union then formed not considered an indissoluble nation state, but the framers in the Philadelphia Convention actually devised a mechanism of secession of States for breaking up the old Confederation, forming a new Union, and allowing future secession of States in coming generations so that new federal structures might be established on our continent. The necessary transactions to promote these objectives are plainly laid down in the records of the Philadelphia Convention. A little background will help us understand the weighty debate which produced the mechanism for secession of States from the Union during the framing of the United States Constitution.
In 1688 and 1689, the Crown of England was transferred from James II to William and Mary in a peaceable, orderly, but revolutionary process whereby a “convention parliament” was assembled, not by writ the King as required by fundamental law for ordinary times, but by proclamation of the natural leaders of the realm in a moment of grave crisis. It was a time when ordinary rules of law could not operate. A convention parliament was elected by the people of the realm with a view to exercising latent sovereign or ultimate powers of society which can establish or disestablish or re-establish any government or union, or reform or frame any constitution. This extraordinary event in England was called the Glorious Revolution. It acknowledged a custom, resting on natural law, and assumed by certain organic statutes, by means of which an existing constitution may be overthrown or reshaped in a manner not mentioned in, or even contrary to normal rules for constitutional amendment.3 Without going into all the details, we can say that the American Revolution was legally justified by this indispensable principle of the English constitutional law. The right to such a lawful, bloodless revolution was received into the colonies of England which became the United States. And so while our current Constitution may be amended by any of the procedures expressly authorized in the fifth article, our fundamental law may also be modified or replaced by other means in keeping with the principle of the Glorious Revolution.
The Union defined by the old Confederation was formed by the legislatures of the original thirteen States, which meant that secession of a State, justified by unlawful acts of Congress or the other States, could be effected by mere legislative act of the State withdrawing from the Union.4 The articles of the old Confederation said that the Union was “perpetual,” which meant, not that the Union was indissoluble, but only that the Union was not limited by a term of years, and so would last forever, unless earlier terminated by law.5 According to the express terms of the compact, the old Confederation could be modified by consent of all thirteen States. It so happens that, by the time the old Confederation became inoperative -- let us say when Shay’s rebellion occurred in Massachusetts --, Rhode Island refused to cooperate in bringing about necessary changes to strengthen the Union, and did not even send delegates to the Philadelphia Convention. Another means of bringing the old Confederation to an end, and establishing a new Union with or without Rhode Island, had to be found, and was accomplished by the Philadelphia Convention in proceedings on the 23rd of July, 1787, which produced what became the seventh article of the United States Constitution.6 This seventh article meant that our current Constitution could be adopted by a special convention of elected representatives of the people, in effect a convention parliament, in each of the States, according to the principle of the Glorious Revolution, with the stipulation that less than all thirteen States could adopt the United States Constitution among themselves, and thereby leave the old Confederation behind. In this way eleven States adopted our current Constitution, each seceding from the old Confederation. The two remaining States, North Carolina and Rhode Island, entered the new Union only after the inauguration of George Washington on the 30th of April, 1789.7 It follows that our current Union can likewise be dissolved by conventions in States desiring to withdraw and, if they see fit, form a new Confederacy among themselves.
The secession of Southern States and formation of the Confederate States in 1860 and 1861 were what the framers of the United States Constitution had in mind in their proceedings on the 23rd of July, 1787, and what they assumed was inevitable within one hundred fifty years.
In our time the United States really include three nations, with three distinct cultures which might best be organized as the United States, the Confederate States, and the Pacific States of America, each of which would include a population about three times the population of Canada. If our forefathers could have their way, we should have, not two, but three or four confederacies above the Rio Grande, all of them interacting by treaties of peace, commerce, and alliance with long unguarded borders between them, much as the United States and Canada do today.
But the hopes of our founding fathers were dashed in the American Civil War, also called the War Between the States, or the War for Southern Independence. What ought to have been peaceful secessions of Southern States from the Union without hostilities, followed by friendly treaties between the Confederate States and the United States, became a conflagration of tragedy. Of twenty-seven million free citizens in 1860, over a million casualties were suffered in the war, about two-thirds killed in battle or died from wounds, the rest maimed for life, -- about one out of every thirteen or fourteen free males killed or maimed for life, about one out of every six or seven free males who actually fought.8 Of four million slaves living in the United States at the beginning of the war, a million, or about one out of every four held in involuntary servitude, died of starvation and disease in the wake of the emancipation proclamation.9 The national debt of the United States in 1860 was about the size of our national debt at the conclusion of the American Revolution, but this huge national debt of the United States was multiplied about fifty-three times in only four or five years.10 Three-fourths of the assessed value of all taxable property in the United States in 1860 was destroyed or sacrificed.11
This unspeakable calamity did not happen by accident, but was agitated by great banking houses in Paris, London, Boston, New York, and Philadelphia during the 1850s, creating crisis after crisis, from the publication of Uncle Tom’s Cabin, to the repeal of the Missouri Compromise, to the civil war in Kansas, to the decision in the case of Dred Scott, to the raid of John Brown in Virginia, then to the walkouts of Southern delegations in 1860 from the Democratic conventions in Charleston and Baltimore, etc. These troublesome events were skillfully stirred up with a view to inducing ill-feeling between the modern industrial society in the Northern States, and the quasi-feudal agricultural society in the Southern States, next secession of Southern States from the Union, and finally a war between the North and the South, which destroyed constitutional government within the Union.
The Southern States seceded, because it was their constitutional right to do so, and because, as expressed in letters and essays of William Gilmore Simms, the Union had ceased to be a vehicle of friendship and security. What most of us do not know is that the war was agitated by private interests which acted behind the scenes. The war was not about slavery or secession, -- it was not even about protective tariffs which had been terminated before the inaugueration of James Buchanan.12 The war was meant to generate, and in fact generated an impossible national debt represented by war bonds which, under corrupt legislation, mainly the National Bank Act of 1864,13 handed control over money and credit of the United States to a banking cartel on Wall Street in an arrangement which was finalized by the Federal Reserve Act of 1913.14 The Federal Reserve has the form and appearance of public authority, but in fact private interests run it. These private interests behind the public façade of the Federal Reserve are dangerous, because they are concealed. Because concealed, they are unchecked. And because unchecked, they abuse their powers to the injury of the American people.
I have written about these developments which caused the brutal and illegal invasion of the Southern States in 1861 to 1865, -- an invasion which was resisted by your noble ancestors who carried a distinctive battle flag in order to identify military units on the field, to symbolize the Christian civilization of the Old South, and to stand for a view of our Constitution including the right of States to secede from our the Union. But I think the best explanation of the causes of the war which destroyed the United States Constitution was offered by the greatest statesman Minnesota ever produced, -- I mean Congressman Charles A. Lindbergh Sr., father of the famous aviator, an insurgent Republican who fought the Federal Reserve Act of 1913 to the last vote in Congress, then warned us that, in consequence of this statute, we would have an “invisible government.”15 This hidden government is made up of private interests which today control the supply and flow of our money and credit for their own convenience and not for the good of our country. They also direct the major news media of the United States to shape public opinion and swing elections. And they cause large tax-exempt foundations to determine what is and is not taught in our colleges and universities. A banking cartel hidden behind public authority starts and ends wars, depressions, and recessions. It dictates our investments. It supplants constitutional government in the United States. The fundamental law of our country cannot be successfully reformed until this banking cartel is stripped of its illicit powers.
The official confirmation of the masquerade government that runs us today is a decision of the United States Supreme Court, known and cited as Texas v. White, 7 Wallace 700 (1869).
After the surrenders at Appomattox Court House and Durham Station, the Southern States were divided into military districts and placed under martial law. And in this setting the military governor of Texas brought suit in the name of the State, invoking the original jurisdiction of the United States Supreme Court, and seeking an injunction enjoining those holding certain bonds owned by the State before the war from negotiating them further, and directing return of those bonds to the public treasury of Texas. In order to invoke original jurisdiction under statutes then prevailing, Texas had to be a State of the Union. A motion was made to dismiss the complaint on grounds that Texas was not then a State.
Chief Justice Salmon P. Chase denied the motion, and allowed the case to proceed. The old Confederation, he said, was by express terms “perpetual,” which is undoubtedly true. And the new Union, he noted, was made by express terms “a more perfect Union,” which is also true under the preamble of our Constitution. And because we have a perpetual Union made more perfect, Chase claimed that we have an “indestructible Union of indestructible States.” Therefore, he concluded, Texas was a State, and original jurisdiction could be invoked.
The refutation of this sophistry is not so difficult. The old Confederation was perpetual as a corporation is said to be perpetual, which means only that it will exist until lawfully dissolved. And the old Confederation was, after all, dissolved. The new Union is undoubtedly more perfect, because it was established by representatives of the people in each of the several States, sitting in convention to exercise sovereign or ultimate power over society, whereas the old Confederation was established only by legislatures which did not have such sovereign power. Under the intended meaning of the United States Constitution, the right of secession was actually reserved to the several States if the people act in their sovereign capacity, as occurred in the Southern States in 1860-1861.
Texas v. White was wrongly decided, because the power dynamics of court house politics did not permit a legally correct decision. One of the forbidding facts was that Chase had been the secretary of the treasury who sold the monetary independence of the United States to the banking houses which financed the conquest of the Southern States. He could not decide on the law, so he decided on something else.
General Stephen Dill Lee asked the Sons of Confederate Veterans to vindicate the cause for which he and his comrades fought. I have just laid down constitutional principles for which Confederate armies so gallantly fought.
In our world today, we have lived through the Cold War, and seen in our own time the collapse of the Soviet Union on Christmas 1991 from secessions of member States which then formed a new independent commonwealth among themselves. It was the most massive movement of secessions in the history of mankind. The world did not come to an end, and Russia has benefited. Meanwhile, the United States have undergone decline because our Union remains a top-heavy, militaristic, consolidated nation state.
Most of us know something of the antagonisms which erupted during the last quarter of the 20th century between French-speaking and English-speaking citizens in Canada. These antagonisms grew out of over-centralization of the Dominion, arraying nine provinces of Anglo-Canada against Quebec as the geopolitical bastion of French Canada. There was a clash of two civilizations not unlike that which erupted in the United States in 1860 and 1861. The result was a powerful separatist movement in Quebec which repeatedly elected governments of the province, and offered two referendums on independence, in the second of which the vote for secession from the Union nearly carried.
The question then arose whether the Constitution of Canada permits secession of a province from the Confederation. The government referred the question to the Supreme Court of Canada. Under organic statutes, there is no express right or formal mechanism for secession. But the fundamental law of Canada embraces customs and conventions, including the principle of the Glorious Revolution.
Accordingly, in the Reference on certain Questions concerning the Secession of Quebec from Canada,  2 S. C. R. 217, the Queen’s judges advised the government of Canada that the people of Quebec enjoy a constitutional right to aspire for independence, and a constitutional right to enjoy a free and peaceable referendum on independence at public expense whenever their elected government determines; that, if in such a referendum the people of Quebec vote by clear majority on a clear proposition for independence, the government of Canada will have a constitutional duty to negotiate terms of separation, nor may the government of Canada in such a situation threaten or use force of arms to resist secession; and that, if negotiations fail, and the government of Quebec unilaterally proceeds to independence which is recognized by other nations of the earth, a new constitutional order will then be established.
In the wake of this judgment, antagonisms between Anglo-Canada and Quebec have essentially evaporated. The people of Quebec have reacted to the concession of their rights within the Union by electing federalist governments. Anglo-Canada has reacted by reaching out in friendship to French Canada. By operation of moral causes, the Canadian Confederation waxes stronger than ever today. Canada did right in 1995-2000 what the United States did wrong in 1860-1865. The right of secession does not mean dissolution of the Union. The right of secession, left unexercised, can restrain the federal government from attempted exercise of dangerous powers, and thereby save the Union from dissolution.
We have just lived through a contentious Presidential election in the United States, and California, edged on by major news media which speak for Wall Street, is now unhappy with the result. There is now a movement in California, first to amend the state constitution which says that the State is “inseparable” from the United States, then to hold a referendum to withdraw the State from the Union. This development may seen extraordinary, but it is drop in the bucket compared with events in the United States following the election of Abraham Lincoln.
If California secedes in 2019 and leads the way toward a Union of Western States, we should let them go in peace. It will then be time for Southern States also to withdraw from the Union and form a new Southern Confederacy. You will be able to enjoy your own way of life, and let California, New England and New York do as they please. The South will be able to do business with States in the West and the North, yet retain her unique cultural identity
1 - This comment by Nathaniel Gorham is recorded in Madison’s Notes, as set forth, e. g., in Jonathan Elliot (ed.), Debates on the Federal Constitution, J. B. Lippincott & Co., Philadelphia, 2nd edtition 1859, Vol. 5, p. 392.
2 - Washington expressed these thoughts in a cabinet debate during the Second Congress on a bill for distribution of representatives among the States under the third clause, second section, first article of the United States Constitution. See John Marshall, The Life of George Washington, revised edition republished by William H. Wise & Co., New York, 1925, pp. 412-418; Jefferson’s memoirs quoted in op. cit. Elliot, Vol. 4, p. 624; and 1 U. S. Statutes at Large 253 (April 14, 1792.).
3 - A standard account of the events of the Glorious Revolution, and the constitutional principle it implemented, is by George Macaulay Trevelyan, The English Revolution of 1688-1689, Oxford University Press, London and Toronto, first published in 1938. The decisive formulation of the constitutional custom which permits a legal and peaceable revolution in certain circumstances, was given by Sir William Blackstone, Commentaries on the Laws of England, Christian edition 1765, Book I, pp. 244-245.
4 - As explained by James Madison in the Philadelphia Convention on the 19th of June, 1787, as recorded in Madison’s Notes, op. cit. Elliot, Vol. 5, p. 207.
5 - Under the common law, a corporation, including any public corporation or government, was said to be “perpetual,” if it was not limited by a term of years, and lasted forever, unless earlier terminated by law, as explained in op. cit. Blackstdone, pp. 475 and 485. And the United States Supreme Court has held that the old Confederation, though perpetual in law, was, after all, legally dissolved, as appears in Owings v. Speed, 5 Wheaton 420 at 422 (U. S. 1820). A “perpetual” Union can, in any event, be dissolved.
6 - The best record of this critical debate is in Madison’s Notes, set forth in op. cit Elliot, Vol. 5, pp. 352-356.
7- The ratification of the United States Constitution by the people of North Carolina in convention on November 21, 1789 appears in op. cit. Elliot, Vol. 1, p. 333. The ratification of the United States Constitution by the people of Rhode Island in convention on May 29, 1790, appears in op. cit. Elliot, Vol. 1, pp. 334-335.
8 - See, e. g., Richard B. Morris (ed.), Encyclopedia of American History, Harper & Bros., New York, 1953, Vol. 1, p. 245. In light of contemporary discoveries, the casualties reported by Dr. Morris are probably low by at least 100,000 men who died in battle or from wounds.
9 - Such is the estimate of Professor Jim Downs in Sick from Freedom, Oxford University Press, Oxford and New York, 2012, as reviewed by Jennifer Schuessler in “Liberation as Death Sentence,” in the New York Times, June 10, 2012. I agree with the estimate of Professor Downs as stated by Mme Schuessler, but I disagree with much of his commentary. As far I can determine, when slaves lost the protection and care of their masters, they died like flies, and this cause primarily explains the huge loss of slaves in the wake of the emancipation proclamation. See the testimony of Judge William Sharkey of Mississippi before the 39th Congress in the spring of 1866, as reporteded by Hans Trefousse (ed.), Background for Radical Reconstruction, Little, Brown & Co., Boston, 1970, pp. 27-29.
10 - As may be gathered from official figures reported by Henry Clay Dean in Crimes of the Civil War and Curse of the Funding System, Innes & Co., Baltimore, 1868, republished by Crown Rights Book Co., Wiggins, Miss., 1998, pp. 193-194, 405-406.
11- As was the estimate of Alexander Stephens in his Constitutional View of the Late War Between the States, National Publishing Co.., Philadelphia, 1870, Vol. 2, p. 630.
12- 11 U. S. Statutes ar Large 192 (March 3, 1857).
13 - 13 U. S. Statutes at Large 99 (June 3, 1864).
14 - 38 U. S. Statutes at Large 251 (December 23, 1913).
15 - Lindbergh’s classic polemic is entitled Banking, Currency, and the Money Trust, National Capital Press, Washington D. C., 1913. Pages 193-207 are particularly important in understanding the monetary causes of the American Civil War.
© John Remington Graham 2017. The author of this address hereby grants the S. D. Lee Institute of the Sons of Confederate Veterans, Young Sanders Center in Louisiana, and the Southern National Congress permission to republish this text including notes. -- J. R. G.