secesion and the Civil War, continued

Bryan A. Alexander bnalexan at umich.edu
Sat Dec 16 19:47:39 MST 1995


Sorry it took so long to respond.  Busy, busy...

Bryan Alexander
Department of English
University of Michigan
**********************

On Wed, 22 Nov 1995, Lorenzo Penya wrote:

>...some summary of the debate so far: Bryan: secession is good; Lorenzo: 
what about US CivWar?; Utica: Bryan, are you mad?; Bryan: most likely; 
Lorenzo proceeds:
> 
> 1.-- There was no legal basis for the secession. The Constitution of the
> United States of America and the other juridical documents founding the
> new Republic at the end of the 18th century made no provision for
> eventual secession. The colonies renounced any such right (supposing they
> had it before entering the Union) and committed themselves to perpetual
> union.

Not necessarily.  There is the theory that the Constitution was a 
voluntary compact (support by the voluntary nature of its writing and 
promulgation) and as such could be reasonably fled.  During the 1858-war 
period the anti-secession forces consistently argued in favor of the 
*Union*, not so much the constitution, revealing what was more at stake: 
the creation of a militant bourgeois industrial nation-state.

 The international treaties recognizing the existence and
> independence of the USA attributed to them (to it, as we now say) a
> certain territory (very large, even before the Louisiana purchase, but
> that's neither here nor there) without any provision whatever for future
> dismantlement or breaking up of the new state (`state' in the
> international political-law sense).

Few international treaties do so!
>       If I am wrong, please, Bryan, be so good as to quote the legal
> documents upon which, to your mind, the Confederates could base their
> secession.

The Declaration of Independence?  clearly the USConstitution does 
not sanction secession - neither does it support armed attack on a part 
or soon-to=be former part of the nation.
>       Admittedly, the ruling 
dynasties in England, Spain, France and
> Belgium supported the rebels (to different degrees). They wanted to
> recognize the secession. They did not dare do so. Even had they been so
> bold as to extend official diplomatic recognition to Richmond, their act
> would have been legally worthless, since they were bound by international
> treaties making it mandatory to recognize the independence and integrity
> of the USA.

Bosh.  Britain sent tens of thousands of troops to Canada ready to storm 
down the Hudson Valley.  The CSA's inability to successfully prevent 
invasion and to project force abroad was why no European power left it 
worth the *risk* to do so.  Had some battle gone the other way...'

>       That the lack of any provision for secession in the Constitution
> meant that separation was banned is borne out by three juridical
> arguments: (1) There was no legal precedent for any right to secede, so
> the mere absence of a recognition of any such putative right meant its
> rejection (a common-law argument which is clearly consonant with the
> procedures characterizing the Anglo-Saxon juridical tradition, but is
> also valid from a more general view-point).

The constitution is also quite flexible, as I'm sure you know.  Many many 
things have been appended to it since the eighteenth century, none of 
which had precedent.  Again, I refer to my earlier theoretical stance 
about voluntary compacts.

 (2) Granting any right to
> secede to the states would entail putting the international community
> before a thorny dilemma and multiplying reasons or pretexts for war;
> since the juridical order exists so as to favour human peaceful and
> fruitful coexistence,

and class war, and extensive agony, and starvation, and alienation, and 
violence...  sure, let's rely on that system, shall we? on a *Marx* list?!?!

 in cases of doubt such interpretation as is the
> most favourable to securing such ends is the one to be preferred. (3) if
> a separation had been ever so vaguely envisaged, some provision would
> have been made for the assignment of common assets, the territories
> acquired through the westward expansion -- the Louisiana purchase, Oregon
> and the lands seized from Mexico through the rapine war of 1847; when the
> secession took place, even the Federal installations in Dixieland were
> a subject for dispute (hence Fort Sumter and the first shots of the civil
> war).

Territory assignation wasn't such a great problem in the CW.  The CSA had 
clearly-defined borders, for the most part.  The CSA was also, prior to 
Lincoln's mobilization (yet after Sumpter!) open to negotiation.

>       As far as i know Lincoln's own statement (in his Inauguration
> speech) against the legality of any secession on the part of the Southern
> states has never been convincingly countered by pro-confederate advocates
> to this day:
> 
>       I hold that in contemplation of universal law and the
>       constitution, the union of these states is perpetual. [...]

"Universal law"?  so much for the independence of the US to begin with, 
hm?  Perhaps Lincoln was losing his mind earlier than I thought.

>       It is safe to assert that no government ever had a 
provision
>       in its organic law for its termination.

No-one was terminating the US.

 No state upon its
>       mere motion can lawfully get out of the Union. I therefore
>       consider that the Union is unbroken and shall take care that
>       the laws of the Union are faithfully executed in all the
>       states.

Note the now-expanded notion of law, encompassing the Constitution (to 
which he does not refer, textually), "contemplation", and "universal 
law."
  > 
>       Lincoln told the secessionists (as if he had thought of Bryan
> Alexander's argument): `You can have no conflict without being yourselves
> the aggressors'.

"Conflict" is the slippery term, here.  The secession itself was a 
conflict - so it must be aggression.  Taking Sumpter (which probably 
belonged to that state anyhow, reasonably) was minor, yet it becomes the 
Last Straw?  Opposing Lincoln seems to be aggression.
> 
> 2.-- The only reason for secession was the desire to preserve slavery and
> even, if possible, to enlarge the slave territory north of the Mason-
> Dixon line in the new Western territories (the Kansas events anticipated
> the war). Thus, secession and slavery rest or fall together.

Not so.  First of all, secession in general is clearly independent of 
slavery.  Second, there were a wide variety of other reasons for the CSA 
states to oppose being in the Union any longer, economic ruin being one 
persistent and not unreasonable fear.

 If slavery
> is wrong, so was secession, which had no other purpose but that of
> maintaining and strengthening slavery. The secessionists had no other
> plans. Their movement did not aim at a better form of government, at any
> sort of publicly supported welfare or anything of the sort (that's
> obvious, but it must be remembered). Some separatist movements may have
> some degree of moral legitimacy on account of their advocating some
> social or moral advance. No such thing was the case with the
> Confederates. Thus, from a moral view-point (still more strongly than
> from a legal one) their secession was unjustified. They were the
> initiators of conflict and for the worst possible cause.

Again, if we collapse the entire debate into slavery, you would be right 
- but since so many other issues were clearly at work, this does not 
hold.  
> 
> 3.-- When a band of criminal terrorists kidnap innocent and defenceless
> civilians, public armed forces are right to intervene against the
> aggressors. The confederates were a gang of such criminals, only on a
> huge scale.

Again, slaveholders were a tiny minority in the CSA, and even among its 
leaders.
 Slavery is against natural law, but it can be cogently argued
> to also be against positive law, too. In fact by upholding slavery,
> before abolition, the governments of the time were violating basic
> clauses of their own juridical principles;

Funny, the Constitution did the same, as did Dred Scott.  Hm.
 so abolition could be
> convincingly argued for from a purely legal view-point. The secession
> meant that all people kept illegally in bondage were to waive any hope
> of liberation. Secession also meant increased difficulties for the
> functioning of the `underground railway', the clandestine path to freedom
> in Canada for many run-away slaves. What is more (and less contentious)
> secession endangered the rights of freemen (and freedwomen), i.e. of
> blacks who had been individually emancipated. That is obvious, too: the
> slave-owners were bent on making their life more difficult in order to
> thwart their help to runaway slaves and renewed uprisings (like Nat
> Turner's).

Another point for bogging down.
	First of all, the CSA was hardly the slaveholding monolith you 
portray.  It was rife with dissent and opposition.  Zinn, for example, 
argues that in 1863 the CSA was riddled with open class revolt, secret 
societies against the status quo, and insurgent political organization.  
Second, the North was engaged in merciless exploitation of its own 
citizens.  Not equal to the suffering of the South, but fully legitimate 
by its laws and international law.  Again, economics reveals more than 
mythic narrative.

>... 
> 4.-- Bryan, you do not support governments of big or middle countries,
> but apparently you do support governments of small countries. 

Nope, I support secession of small governments.  I'm for dis-integration, 
and communalism over states.

Dixie still
> was a huge country, you know (at least 10 times bigger than Spain). 

It
> developed a bourgeois military machine (nay, many former members of the
> federal military joined the Confederate army, as they were Southerners).

Not very much, but it was on its way.  The southern middle classes would 
probably have offed slavery on their own.

> You do not support slavery. But without the American civil war, slavery
> would still exist. To start with, in the so-called Confederate States of
> America themselves. Then in Russia, in Cuba, in Brazil, in Africa, in
> India, in China, etc etc. Abolition of bondage or serfdom (the difference
> is very tricky) by Czar Alexander II was a direct consequence of the
> American civil war.

Only tactically.  The Tsar was up for it anyhow, under massive pressure: 
elite, but especially the specter of a 1789-style uprising.  Revolution 
is always more powerful than codes of laws!
	Furthermore, secession has the ability (not automatic, but 
potential) to erode or shatter structures of authority.  Power becomes 
more visible, its fictive supports more evident.  If the CSA survived its 
war, then broke into separate states, and disintegrated still further, 
who knows what might have happened?

 The 1st Spanish Republic abolished slavery in Puerto
> Rico en 1873. The restored Spanish monarchy finally was compelled to
> abolish it in Cuba in 1880 (by the Zanjon pact). Some years later, it was
> at last abolished in Brazil. And so on. Nothing like that would have
> happened without the American civil war. 

Luckily, the rest of the Americas could rely on US imperialism.  I forgot 
that bit of munificence, sorry.
	This whole argument - about supporting the mighty arm of the USA 
to crush evil - was used in the 1960s to support the US war on Vietnam, 
curiously.  I don't mean this as a facile rejoinder, but to point out 
that capital's logics are most revelatory, at times, in their surprising 
continuities.

 Nor is it likely that later on
> the confederates themselves would have peacefully given up slavery. Nor
> is it credible that, should Lincoln have followed Buchanan's policy
> (doing nothing against the rebels), later on the federal government would
> have started a recovery war against the South: had the confederacy been
> allowed to take root and secure international recognition, the enterprise
> would have become all but impossible.

Or done nothing.  Or fallen to workers' revolts, as were threatened the 
next few years.  See below.

>       It is always regrettable when human affairs lead to 
war and
> progress cannot been achieved through peaceful means. But among all wars
> waged by humans, none has been more just, or more conducive to greater
> human happiness and fraternity, than Lincoln's war against the
> Confederate States of America.

Does this include the use of Federal troops to massacre strikers and 
Native Americans?  Lincoln routinely violated habeus corpus, of course, 
but was also the single biggest enemy of the working class during the 
1860s.In 1860 the Lynn strike of more than 10,000 laborers - the largest 
in New England history up until that time - was brutally put down by the 
USArmy.  during the war itself the feds jailed dissenters  while pumping 
unprecented subsidies and ripe trade policies to big business.  In 1863 
Lincoln had the Conscription Act passed which allowed the rich to avoid 
the draft, targeting the working- and underclass for the war's maw 
(remember, this is when the CSA seethed with unrest).  A song from that year:

	We're coming, Father Abraham, three hundred thousand more
	We leave our homes and firesides with bleeding hearts and sore
	Since poverty has been our crime, we bow to thy decree
	We are the poor and have no wealth to purchase liberty.


1864 saw the passage of the Contract Labor Law, allowing companies to hire
scabs and import cheap foreign labor (almost all of whom worked in slave-like 
conditions).  Business celebrated with a round of strikebreaking.

	Let's not think this war on the working class (of course the one 
ignored by history in favor of the prettier one against the south) was a 
consequence, a glitch emanated by the cumbersome machinery of war.  Labor 
unrest continued until the Depression of the late 1870s, when it exploded 
into a series of massive strikes amidst starvation and systematic poverty 
(all thoroughly defended by that body of jurisprudence that works for the 
good, remember?).  Veterans of Gettysburg were ordered to shoot strikers; 
many did.  Most industrial states developed substantial armed forces in 
anticipation of further uprisings.  By 1880 the nation once again 
resemvbled an armed camp, but without Dixie.  The conflation is not 
slavery and secession, but the celebration of the Northern victory with 
the blood-stained triumph of Capital.
	



	PS:Pace Howard Zinn once more:
	"...it was not the inhuman, immoral aspect of the institution [slavery]
which brought all the weight of national power against it; it was the 
antitariff, antibank, antinational aspect of slavery which aroused the 
united opposition of the only groups in the country with the power to 
make war: the national political leaders and the controllers of the 
national economy."

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