Confederate Legislators Debated Secession … from the Confederacy!
The Confederacy is remembered for two issues: slavery and secession. Enslavement was clearly codified in the Confederate Constitution, but the question of secession was surprisingly left vague. That does not mean it was not debated, and Confederate leadership actually examined the concept of secession from their own government.
In January 1863 news reached London of a secret plot to “induce Texas to secede from the Southern Confederacy.”
[1] It was quickly dismissed as hearsay, but one year later, secession became political ammunition in North Carolina’s gubernatorial race. Incumbent – and ultimate victor – Zebulon Vance seemed murky regarding the concept of North Carolina potentially leaving the Confederacy, speaking on the matter in different viewpoints depending on where he campaigned. In one speech in Wilkesboro, Vance proclaimed that if North Carolina seceded, he would “not go with his state,” while in another in Fayetteville Vance conjectured “if the fortunes of war turn against us,” North Carolina’s secession “may become necessary.”
[2] In other speeches, Vance pinned such sentiments on opposition candidate William Holden as the man who might facilitate North Carolina’s secession from the Confederacy.
[3]
Could Confederate states secede? Seems like a moot question. Since the Confederacy formed via states seceding from the United States, it seems such power was inherent. But if secession was an
unstated right of states, was it incontestable? Article VI, clause 6 of the Confederacy’s constitution copies the U.S. Tenth Amendment, stating “The powers not delegated to the Confederate States by the Constitution, not prohibited by it to the States, are reserved to the States, respectively, or to the people therof.”
[4] Perhaps this clause provided the protection and authorization of a state wishing to secede, as is it not forbidden in that constitution and thus became a reserved power of states. But if this same reserved power claim could be implied from the U.S. Constitution, why did Abraham Lincoln oppose secession of slaveholding states?
Another part of the Confederate Constitution provides a counter. Article IV, clause 3 states the Confederacy “may acquire new territory,” outlines how territorial governments should organize, and notes that enslavement “shall be recognized” by the territory’s government.”
[5] Territory
was added, in the form of Virginia, North Carolina, Arkansas, Tennessee, and Arizona, but nothing in that clause claims the Confederacy could detach or lose territory.
One final part of the Confederate Constitution hints secession is implied: the preamble. The Confederate Constitution’s preamble denotes each state joined the new country “acting in its sovereignty and independent character.”
[6] Case closed, but perhaps not quite, for the preamble also declares those sovereign states are uniting to “form a permanent federal government.”
[7] Could a permanent new federal government be dissolved through secession, and would a state seceding actually dissolve said government? The preamble certainly adds weight to an implied right of secession.
An overt statement in the Confederate Constitution would certainly provide clarity. The word secede does not appear in the document, but it almost did. The Confederate Constitution’s framers debated settling the ambiguity. On March 7, 1861, Georgian Benjamin H. Hill proposed a new article to the draft Confederate Constitution. Three clauses in Section 2 of that proposed article sought to clarify secession:
1. States wishing “to withdraw from this Confederation” needed to call a convention of citizens to formally explain “the causes of such desire to withdraw.”
2. If Congress cannot address those causes and desires to secede, it “shall arrange with such State an equitable division of the public property, and a peaceable withdrawal from the Confederation.”
3. States leaving must “pay a due proportion of the public debt existing at the time of such withdrawal” as well as “expenditures made, or liabilities incurred by the Confederate States, in acquiring, securing, fortifying or defending the territory or jurisdiction of such State.”
[8]
Hill’s proposal was immediately amended and reworded by James Chesnut (noted diarist Mary Chesnut’s husband): “The right of a State to secede from the Confederacy shall not be denied. And whenever any State, through a convention of its people, shall dissolve the connection between it and its confederates, it shall be the duty of the President to withdraw all forces from within the territorial limits of such State, and permit it peacefully to withdraw.”
[9]
The Hill-Chesnut proposal was ordered printed but was never debated by the proto-Confederate Congress again. Four days later, the Confederate Constitution was approved without the article clarifying secession. Perhaps it was excluded, as Confederate Constitutional scholar Marshall DeRosa explains, because expressly denoting secession from the Confederacy would itself admit that the U.S. Constitution, which Confederates claim implied the right, thus forbade it.
[10]
Clarifying whether Confederate states could secede reemerged in 1863 by Georgia Senator Herschel Johnson. On February 5, Johnson introduced Senate Bill 33, proposing a two-part constitutional amendment. It provided an avenue for a redress of grievances by states against perceived unconstitutional federal action by allowing states to form conventions to declare Congressional action unconstitutional. If done, Congress would then “call a Convention of the States … and if not affirmed by two-thirds of said conventions, the vote to be taken by States, it shall be void.” The second part of the proposal stated that if states worried about unconstitutional action by Congress could not be redressed satisfactorily, “and it determine to secede from the Confederacy, it shall do so in peace, but shall be entitled to its
pro rata share of the public property and liable for its
pro rata share of the public debt to be determined and settled by negotiation.”
[11]
Word of Johnson’s proposed amendment immediately hit Richmond’s
Times-Dispatch, but Johnson withdrew the bill from consideration on February 7.
[12] Many reporters editorialized the proposed amendment might “prove one of the best guarantees for the permanency of the Confederate government,” so there was rampant speculation about the amendment’s withdrawal.
[13] Savannah’s
Republican and Charleston’s
Mercury were heavily critical, claiming the amendment was “superfluous.”
[14]
Another perusal of the Confederate Constitution explains the amendment’s rapid withdrawal. It clarifies the new country’s amendment process: “Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a convention of all the States, to take into consideration such amendments … and should any of the proposed amendments to the Constitution be agreed on by the said convention, voting by States, and the same be ratified by the Legislatures of two-thirds of the several States, or by conventions in two-thirds thereof … they shall thenceforward form a part of this Constitution.”
[15]
As it turns out, Johnson had no right to propose a Confederate constitutional amendment, something the senator readily admitted in his memoir and the
Charleston Mercury criticized him on. “At the time I introduced the bill,” Johnson acknowledged, “not having examined especially the point, that the Congress had the right, as that of the United States has, to propose amendments to the Confederate Constitution. But Mr. Yancy [Senator William L. Yancey] of Alabama called my attention to the change and hence, I withdrew my bill.”
[16] Johnson also penned a newspaper editorial admitting his ignorance of the very constitution he swore to protect, while defending his actions in pursuit of “good government, stable government, [and] enduring government.”
[17]
So twice Confederate legislative bodies examined the right to secede from the Confederacy and proposed codifying it in their constitution. Both proposals were abandoned. Ultimately the question of secession from the Confederacy was moot, as the country dissolved before this principle was ever tested. Thus, the question of whether Confederate states could secede from their new country will always remain heavily implied, but not explicitly confirmed.
