In today’s parlance, the concept of secession not only connotes insurrection but even treason. However, in 1789, when the Constitution became the governing law of the United States, the right of secession was a hotly debated subject. Even during the two-year period of the document’s drafting and ratification, the seeds of secession were sown when some states demanded an amendment to the Constitution that would allow the people to return sovereignty to their state if conditions should ever demand it. Examples of this could be seen in resolutions proposed by New York and Rhode Island that requested, in part, that “the power of government may be reassumed by the people whenever it shall become necessary.”
Even though the resolutions which would allow secession were ultimately rejected, with the Tenth Amendment put in their place, the Constitution that was finally ratified by all the thirteen states contained no section prohibiting secession. The first test of a state’s right in this regard took place only a decade later in response to the Alien and Sedition Act of 1798.
In 1798 and the following year, Kentucky and Virginia offered resolutions written by Thomas Jefferson and James Madison declaring that since the Alien and Sedition Act was deemed unconstitutional, the states had the right to declare it so and nullify the Act. John Taylor and other members of the Virginia House of Representatives took the matter s step further when they proposed that if the Act was not repealed, Virginia should secede from the United States. Even Vice President Jefferson tended to agree with the concept of secession in this matter. In a letter to then Congressman James Madison, Jefferson stated that if the federal government did not return to the true principles of the Constitution, we should “sever ourselves from that union we so much value, rather than give up the rights of self government we have reserved.”
The possibility of secession again arose during the War of 1812 and was even commented on by the writer of the preamble to the Constitution and an ardent supporter of a strong federal government, Gouveneur Morris of New York. Morris stated that while all Americans were citizens of a single union, it was possible that “secession, under certain conditions, was entirely constitutional.” Such an action was actually considered in December of 1814 by a group of Federalists from the five New England states.
In that instance, dissatisfaction with the administration had begun with President Jefferson’s purchase of the the Louisiana territory from France in 1803. The New England Federalists, led by Timothy Pickering of Massachusetts who had served as postmaster genera;, secretary of war and secretary of state in the Washington and Adams administrations, charged that the purchase had been made without the consent of Congress. They also felt that the Embargo Act of 1807 was detrimental to New England’s business interests, as well as that the War of 1812 with Great Britain was a mistake and a peace treaty should be immediately concluded.
The group felt their grievances could only be met through the secession of the New England states and the formation of a pro-British northeast confederation that might also include parts of southern Canada . . . a proposal that was supported by the press throughout New England. At the end of 1814, delegates from Connecticut, Massachusetts, New Hampshire, Rhode Island and Vermont met in Hartford, Connecticut, to discuss all the issues involved, including secession. Two months later, however, the War of 1812 had ended, and with it ended the idea of New England’s secession . . . at least for the next two decades.
South Carolina also flirted twice with secession prior to 1860, first in protest to the 1828 and 1832 Tariff Acts, which the state said would endanger its economy, and again in 1850 over a slavery issue. In the latter case, there had been growing unrest in the South concerning such proposals as the Wilmot Proviso to make all the land taken in the recent Mexican War non-slave states and territories. In 1850, the South Carolina secessionist movement elected John H. Means as governor, sent Robert Barnwell Rhett to the U. S. Senate and created a board to prepare an ordinance of secession. Supporters of the Compromise of 1850 finally prevailed, however, and South Carolina’s secession was derailed for a decade.
Meanwhile, in the 1830s, abolitionist newspaper publishers in the North, such as William Lloyd Garrison of Massachusetts and Benjamin Lundy of New Jersey, considered that the North was being victimized by Southern slaveholders and Western expansionists. They were also opposed to the possibility of a war with Mexica and advocated that the Northern states secede from the Union to form a new, slave-free confederacy. Garrison even went so far as to add the cry “No Union with Slaveholders” to the masthead of his Boston newspaper, “The Liberator.” The idea of Northern secession grew to the point when, in January of 1842, Congressman and former president John Quincy Adams presented a Massachusetts petition to Congress requesting the dissolution of the union.
The secession sentiment continued to grow throughout the North and at the 1851 New England Anti-Slavery Convention in Boston, the delegates approved Northern secession by a vote of 250 to 24. Then, during 1856 and 1857, a number of well-attended “No Union with Slaveholders” conventions were held in Indiana, Massachusetts, Michigan and New York. It was just three years later that South Carolina actually passed the nation’s first ordinance of secession . . . a move that was swiftly emulated by six additional Southern states, followed by their reformation as the Confederate States of America.
Prior to all that, the first in-depth study of the Constitution was written by a highly-regarded Pennsylvania lawyer, William Rawle, who had been appointed as that state’s federal attorney by President Washington in 1791. His seminal work, “A View of the Constitution of the United States of America,” was published in 1829 and soon became a major text book at many universities, including the U. S. Military Academy.
The final chapter of Rawle’s book presented a lengthy dissertation on the question of secession. Rawle did not advocate a state taking such a drastic action, but he presented the various circumstances under which it might be considered, as well as the reasons why it should not. His study of the Constitution led him to the conclusion that since the union of states was not irrevocable, that secession was allowable under the Constitution. Needless to say, Rawle’s work was carefully studied by many of the South’s future lawmakers.
During the period when secession was first being considered in the North, an actual act of insurrection against the United States was being contemplated by former Vice President Aaron Burr. Following his killing of Alexander Hamilton in a duel in 1804, Burr had been removed from office and traveled west where it was reported that he was raising an army to take over parts of the newly purchased Louisiana territory, as well as starting a war with Spain in order to gain control of Mexico.
As President Jefferson had been told by Secretary of State James Madison that he lacked the authority to send federal or state troops to counter Burr’s rebellion, he asked Congress for a law to allow such action on his part. Both houses acted swiftly, and passed the Insurrection Act of 1807. Before Jefferson could implement the new law, however, Burr had been arrested in Alabama on a charge of treason. His trial ended in acquittal, and Burr left the United States for a five-year stay in Europe.
The original Act required that state militias could only be called into federal service if it was requested by a state. The Act was rarely used though, first by Jefferson in 1808 in relation to violations of the Embargo Act of 1807 by shippers on Lake Champlain. President Andrew Jackson employed it twice, first in i831 when Virginia requested troops be federalized to put down the Nat Turner slave rebellion and again in 1834 at the request of Maryland involving a labor dispute on the Chesapeake and Ohio Canal.
The Act’s most important and controversial use, however, came in 1861 after the attempt by President Lincoln to send federal troops and munitions to Forts Sumter and Pickens had led to the Confederates firing on Fort Sumter in Charleston Harbor on April 12th. Two days later, after the fort had been evacuated, Lincoln asked General Winfield Scott, the commander of the Union Army, if he felt that the capital was safe from Confederate attack and was assured by Scott that the capital was protected by a “higher power” and could not be taken. With some degree of cynicism, Lincoln replied, “Even if it has been ordained that the city of Washington will never be taken by the Southerners, what would we do, in case they made an attack upon the place, without men and heavy guns?”
Actually, Lincoln’s comment was not only cynical, but hypocritical as well, since at the time it was made, Washington was surrounded by the states of Maryland and Virginia . . . both of which were still loyal to the Union. Virginia had taken a vote to secede on April 4th, but it had been defeated ninety to forty-five. Furthermore, just two weeks prior to his meeting with the president, the seventy-five year old Scott, realizing he could bo longer effectively lead troops in the field, had offered command of the Union Army to his most trusted officer, Colonel Robert E. Lee of Virginia.
Nevertheless, the day after Lincoln asked for and received an amendment that would bolster the Militia Act of 1795 by changing the the Insurrection Act to allow him, without the consent of a state, to use both federal troops and federalized state militias against the seven Southern states. Then, on the 15th of April, ignoring all the still unresolved or unadjudicated secession arguments and movements that had taken place in the country for almost a century, he issued a proclamation stating that since the seven Southern states he named were in insurrection against the government of the United States, he was calling for seventy-five thousand troops to be supplied to suppress the rebellion. In addition, Lincoln immediately brought several thousand state troops from Massachusetts and New York to Washington to defend the capital.
Only then did the states of Arkansas, North Carolina, Tennessee and Virginia also vote to secede and join the Confederacy. Kentucky, Maryland and Missouri had attempted to follow suit, but were prevented in doing so by Union troops. Even though the District of Columbia was now partially surrounded by a hostile state, no attempt to attack the federal capital had been made by the Confederate forces. In spite of this, on May 24th, only a day after Virginia had ratified its April 17th ordinance of secession, thousands of the Union troops that had been sent to “defend” Washington, including infantry, cavalry and artillery units, poured out of the city to invade and occupy a large part of Virginia . . . and Lincoln’s undeclared war to quell what he termed an insurrection was fully begun.