Was Confederate Secession Treason?

This Wednesday, June 28, 2017, shows the statue of Confederate Gen. Stonewall Jackson on Monument Avenue in Richmond, Va. As cities across the United States are removing Confederate statues and other symbols, dispensing with what some see as offensive artifacts of a shameful past marked by racism and slavery, Richmond is taking a go-slow approach. (AP Photo/Steve Helber)

The short answer is “no.”  Thus, any Confederate soldier, general or official cannot be considered treasonous in today’s rush to purge all things Confederate.  And to show that secession at the time was not a treasonous act, we have history.

The Constitutional Convention of 1787 in Philadelphia was originally called to work out problems that had developed under the Articles of Confederation and did not originally start out to write a whole new constitution.  America was founded on breaking away from Britain, itself an act of secession.  Following independence, each state established their own sovereignty but realizing they could not survive as 13 sovereign nations, they formed a confederation of states for the purpose of negotiating treaties, foreign commerce and waging war and only for those reasons.

Article II stated that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”  Article XIII then states that the “union shall be perpetual” and it disallowed secession by any state unless all states agreed.  This seems to support the opposite view often called “perpetual union.”  However, the notion of a “perpetual union” clause in the newly created Constitution was suggested, debated and solidly defeated.  Unlike the Articles, the new Constitution also did not forbid secession by any state.  In fact, it was rather silent on the subject of secession.  But, is its silence evidence in support of secession?

It does not necessarily prove that secession was possible except for the fact we know from history that secession was a very real possibility way before the Civil War.  After the election of Thomas Jefferson, Federalists in New England became so incensed against the Louisiana Purchase and other Jeffersonian policies that they suggested secession.  They later organized a convention in Hartford in 1814 to discuss seceding from the Union because of the War of 1812 since it interfered with New England’s commerce with Britain.  Massachusetts Senator Timothy Pickering stated that secession was the essence of independence.  In 1839, staunch nationalist John Quincy Adams noted that the notion of secession was acceptable and in 1845 some leaders again suggested New England‘s secession from the Union over the admission of Texas.  Alexander Hamilton, the ultimate Federalist, believed that coercion of force to keep any state in the Union was “the maddest projects ever devised.”  During the ratification debates, Oliver Ellsworth feared armed coercion to keep a delinquent state in the Confederation.  He noted that this action would strike at the heart of the American founding.

James Madison, who knew a thing or two about the new Constitution, noted that the document was framed with the consent of the states assembled, but was nothing but words on paper until ratified by the states.  Even still, he later argued that it could not bind the non-ratifying states into acceptance or even keep those that did ratify in staying.  As Ellsworth noted, there was no coercive principle or clause in the Constitution, but one.

That clause was the one that authorized Congress to call forth the militia to suppress insurrection.  At this point then, it has to be determined whether the seceding states were involved in insurrection.  An insurrection is defined as a violent uprising against a government or authority.  Lincoln and many in the North obviously viewed secession as an insurrection, but if we accept that classic definition of the word, we find that it is hollow.

The Constitution notes that the militia can be called forth by Congress at the request of a state to suppress an act of insurrection.  Obviously, a seceding state would not call forth the militia to suppress itself.  In fact, South Carolina at the time considered itself a sovereign entity apart from the United States and the presence of a federal fort- Sumter- guarding its main harbor was intolerable.  The South Carolina militia, under the command of P.G.T. Beauregard tried to first convince the federal troops to leave.  It is apparent from correspondence that the Confederate states had done everything to avoid a shooting war over Fort Sumter.  After the “battle” which resulted in no deaths, Lincoln called for additional volunteers to battle the “insurrection.”  This then caused another four states to secede.  Furthermore, the seceding states did not attempt to overthrow the existing government in Washington, DC.

When South Carolina became the first state to secede, there was general agreement and understanding in both the North and South that this secession would be a peaceful affair.  Prior to Fort Sumter, seven states had seceded and were assembling in convention to form the Confederate States of America.  Three months elapsed between the seventh state seceding and Fort Sumter.  It was not until July- three months after Fort Sumter and 6 months after secession- that Congress, after heated debate, declared the seceded states in “rebellion.”  However, this was more for practical purposes; namely, what to do with the vacant seats in the Senate.  By not filling those Senate seats, they were, in effect, saying they were no longer states.  If they were no longer states, then anyone who took up arms could not be accused of treason.

As this historical evidence shows, secession was not a settled issue in the years leading up to 1860-61 and had been considered- quite seriously- by other states previously for differing reasons.  To argue today that Confederate generals were treasonous actors is applying today’s interpretation of secession which is dependent on the 14th Amendment which was non-existent in 1860.  You simply cannot apply that criteria ex post facto.  

Some argue that Confederate generals were “treasonous” since they took an oath to defend and protect the Constitution of the United States when they joined the military.  At the time before the ratification of the 14th Amendment, people were citizens of the individual states that were members of the United States.  Once a state declared itself free of the United States, the people were no longer affiliated with the United States.  The Electoral College, the Bill of Rights, the original election of the Senate and the Tenth Amendment all prove that the Constitution did not establish an all-powerful national democracy, but a confederation of sovereign states.  At the time of the Civil War, the notion of secession was still a topic of heated debate, unlike today.  Furthermore, the oath taken after the Civil War specified they swore to uphold the Constitution and the Union.  This, coupled with the 14th Amendment which was ratified after the Civil War, cleared up the ambiguity of loyalties to states versus the Union.

After the Civil War, Confederate President Jefferson Davis was captured, imprisoned and charged with treason.  Supreme Court Chief Justice Salmon Chase- no friend of the Confederate cause- told President Andrew Johnson that pursuit of the case was senseless because there was nothing in the Constitution that forbade secession.  That is why no trial was ever held.

The concept of the right of a state to secede was settled with the passage of the 14th Amendment.  And obviously, the stain of slavery was always lurking in the background as the cause of the Civil War.  However, the overriding cause of the war was the ongoing debate of state rights versus the federal government.  In fact, the Nation came quite close to war years before the Civil War over the nullification crisis and that had nothing to do with slavery.

The bottom line is that we are applying 2018 standards to the 19th century.  Today, if any state seceded from the Union, there is no doubt that such an action would be unconstitutional (unless the federal government acquiesced in that secession).  Would it be treasonous?  Even applying 2018 standards, the answer is murky and it was even more murky in 1861.  Therefore, the seceding states and their officials, soldiers and generals cannot be treasonous actors against the United States.