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Ol' Choctaw
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Tue Aug 19, 2014 1:16 pm

GraniteStater wrote:The US Constitution is not a treaty, nor a compact among completely sovereign entities, not a contract of any kind.

BTW, I'm part Penobscot myself, if that has any possible bearing on the discussion.

The ratification of the USC by the several States was an instrumentality, as I have mentioned above - they could have had a national plebiscite, I suppose. Also, if I read you correctly, you seem to think that the Preamble is just a nice-to-have feelgood piece of superfluous verbiage. This view is profoundly mistaken. The preamble states the source of sovereignty and authority (We, the People of the US - that means all of them, as one nation, not thirteen polities agreeing for convenience), and enumerates the purposes for which the USC was established. The first one is a more perfect Union. As Lincoln correctly asserts in his FIA, if the Union could be dissolved unilaterally by any State at any time, it would have lost the vital element of perpetuity.

Lincoln is right. The attempt to secede and its so-called justifications, was, and is, wrong - in every single way conceivable.

Do the homework. Read the FIA. Read the antecedent documents. Then refute Lincoln and his understanding - if one can.

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This will have to be it for a while. A whole lotta RL going on.



I have read it. Have you read the federalist papers or around the drafting of the constitution?

Madison, in his letter to Irving deals with the preamble. That is linked above. Prior to the ACW the United States was referred to as a confederacy and the proper reference was in the plural. It was never an inviolate or undissolvable union. How is forced participation a principal of freedom?

The various people formed their states by association and the States formed the federal government as their agent to handle international affairs.

Lincoln certainly did not know the Constitution better than the founders. He clearly violated it numerous times on several counts as well as, so far as I can tell, every one of the first 10 amendments that make up the bill of rights. All this to support the preamble as he interpreted it and select parts of the Declaration of Independence.

These are not the actions of a man scrupulously interpreting or upholding a set of documents he professes to believe in.



Le Ricain wrote:Sorry, the Treaty of Paris of 1783 was between Great Britain and the United States of America, as you can see from its first line. The treaty was ratified by Congress in 1784 and not by the individual legislatures. The US states were not independent states at this time.

http://avalon.law.yale.edu/18th_century/paris.asp



Article 1:
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.

Viz. (also rendered viz without a period) and the adverb videlicet are used as synonyms for "namely", "that is to say", and "as follows".

In other words each and every state which had been at war.

Read Madison above. The States ratified the constitution in convention of their respective people.

It is still the doctrine today. Were it not, there would be no state laws, only federal. However, federal courts contend that the federal government has no police powers within the states, as derived from article IV section 4 of the constitution.

It is quite clear from the last paragraph of the Declaration of Independence that each former colony was an independent state unto themselves. Not the provinces of some other state known as The United States.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Prior to the war the proper name was always the plural. These United States, The United States are, or even Our Confederacy. Note they were the united States of America not United States of America in that first line.

They never saw themselves surrendering their independence by joining into an agreement of mutual benefit and saw them selves as being able to withdraw from it if need be.

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GraniteStater
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Tue Aug 19, 2014 5:36 pm

No.

BTW, it's "principle", not "principal."

I've got only two minutes here - O'C, you're just plain mistaken. You wish mightily that the US was a league ('confederacy' is almost absolutely synonymous with 'federation'. as used during the early period of the Republic). It is not. Your entire argument was refuted by Jackson in 1832, in just about those very words - when SC was bruiting about the notion that it would refuse to recognize Federal statutes, he was quite explicit - the US is "a government, not a league". He averred that he would march troops in and start hanging the principals involved - a little extreme, but right in the sentiment.

"We, the people of the United States..." - all of them, one nation. "The United States, in Congress assembled..." - the announcement of our birth as a nation, explicitly averred in the Declaration - there is no reference to thirteen nations joined together in an association.

And all of the post immediately above does not, to the slightest degree, refute Lincoln's central observation that if one State could unilaterally dissolve the Union, then that Union loses the vital element of perpetuity (explicitly stated in the Articles of Confederation). It is ludicrous to suggest that when the antecedent explicitly mentions pepetuity, and the successor does not, but does state a desire to establish a more perfect Union, then somehow, perpetuity is of no concern. Balderdash. Stuff & nonsense.

And finally, the thread is "Could the ACW have been avoided?" Asked & answered - yes, obey the law.
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Le Ricain
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Tue Aug 19, 2014 8:00 pm

Ol' Choctaw wrote:

Article 1:
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.

Viz. (also rendered viz without a period) and the adverb videlicet are used as synonyms for "namely", "that is to say", and "as follows".

In other words each and every state which had been at war.


It is quite clear from the last paragraph of the Declaration of Independence that each former colony was an independent state unto themselves. Not the provinces of some other state known as The United States.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown...


The Treaty of Paris of 1783 was between Great Britain and the United States of America; not the united states of America. Between 1776 and 1783, the united colonies or states of the Declaration had evolved into the United States of America.

Article 3 deals with fishing rights for Americans in fishing grounds off Canada. The treaty allows for the people and inhabitants of the United States of America to have rights to fish in these waters. There is no reference to individual or independent states' inhabitants having rights to fishing. Also, the article refers to two countries, Great Britain and the United States of America. There is no mention of 14 countries, ie the 13 states and Great Britain.

Article 8 states that the Mississippi River shall be open to the subjects of Great Britain and the citizens of the United States of America.

Finally, the treaty was signed by John Adams of Massachusetts, Benjamin Franklin of Pennsylvania and John Jay of New York. If the peace treaty was between Great Britain and 13 independent states, where are the remaining 10 signatures? There is no way that an independent state would neglect to sign a peace treaty. Maryland and Virginia are not still at war with Great Britain. The treaty was ratified in 1784 by the United States of America Congress and not by the individual state legislatures.
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Ol' Choctaw
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Tue Aug 19, 2014 8:24 pm

Le Ricain wrote:The Treaty of Paris of 1783 was between Great Britain and the United States of America; not the united states of America. Between 1776 and 1783, the united colonies or states of the Declaration had evolved into the United States of America.

Article 3 deals with fishing rights for Americans in fishing grounds off Canada. The treaty allows for the people and inhabitants of the United States of America to have rights to fish in these waters. There is no reference to individual or independent states' inhabitants having rights to fishing. Also, the article refers to two countries, Great Britain and the United States of America. There is no mention of 14 countries, ie the 13 states and Great Britain.

Article 8 states that the Mississippi River shall be open to the subjects of Great Britain and the citizens of the United States of America.

Finally, the treaty was signed by John Adams of Massachusetts, Benjamin Franklin of Pennsylvania and John Jay of New York. If the peace treaty was between Great Britain and 13 independent states, where are the remaining 10 signatures? There is no way that an independent state would neglect to sign a peace treaty. Maryland and Virginia are not still at war with Great Britain. The treaty was ratified in 1784 by the United States of America Congress and not by the individual state legislatures.



And each state is recognized as independent by name.



GraniteStater wrote:No.

BTW, it's "principle", not "principal."

I've got only two minutes here - O'C, you're just plain mistaken. You wish mightily that the US was a league ('confederacy' is almost absolutely synonymous with 'federation'. as used during the early period of the Republic). It is not. Your entire argument was refuted by Jackson in 1832, in just about those very words - when SC was bruiting about the notion that it would refuse to recognize Federal statutes, he was quite explicit - the US is "a government, not a league". He averred that he would march troops in and start hanging the principals involved - a little extreme, but right in the sentiment.

"We, the people of the United States..." - all of them, one nation. "The United States, in Congress assembled..." - the announcement of our birth as a nation, explicitly averred in the Declaration - there is no reference to thirteen nations joined together in an association.

And all of the post immediately above does not, to the slightest degree, refute Lincoln's central observation that if one State could unilaterally dissolve the Union, then that Union loses the vital element of perpetuity (explicitly stated in the Articles of Confederation). It is ludicrous to suggest that when the antecedent explicitly mentions pepetuity, and the successor does not, but does state a desire to establish a more perfect Union, then somehow, perpetuity is of no concern. Balderdash. Stuff & nonsense.

And finally, the thread is "Could the ACW have been avoided?" Asked & answered - yes, obey the law.

Refuted by Jackson doesn’t mean much. That stance resulted in his own Vice-President resigning to oppose him in the Senate. He was not known for his deep rationality or considered legal opinions.

Old Hickory fumed and blustered but even he didn’t follow with troops.

The Resolution of Force, which was of dubious constitutionality was not used but a compromise tariff, in the Tariff of 1833 was passed which was acceptable to South Carolina.

So, it was not force that ended the crises but political compromise, which satisfied both sides. A compromise drafted by Henry Clay, Lincoln’s hero and idle. Too bad he was more like Jackson.

Obviously you have not studied the preamble or its meaning or else you would know that it was the people of the states and not the people at large. People of the time usually held allegiance to their State of birth rather than to any notion of national government. It was much more regionalism than nationalism. If there was a sense of nationalism it was one more harbored in the south than the north, as they seemed to be the ones fighting the wars while most in the north sat them out.

New England in particular was good at that. Deprived of shipping revenues they threatened secession during the War of 1812 and went so far as to propose a separate peace with Great Britain. They raised troops and sent their representatives to congress to present their secession only to find the war had ended, so they reconsidered and found their interests might be better served by remaining in the union.

It is not me that has fallen for political hokum and distorted history.
You seem to be going off on that mystical union bull. Most of that stuff is made up or taken out of context. That is all stuff to support the Holey Father Abraham. In his lifetime Lincoln was likely the most hated president there was, at least to that point. Dieing on Good Friday at the end of a bloody war just sent the New England clergy into an organism and we have no end to the silly propaganda to this day.

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Tue Aug 19, 2014 10:26 pm

A very interesting thread giving a lot of food for thought : thanks to all contributors and above all thanks to have kept the debate as courteous as possible despite the "hotness" of the subject.

A question to the people advocating for the right to secede : this position implies that if tomorrow the State of New-York (by example) decides to secede, nothing would prevent it ? Going further in the logic, does it imply that any group of citizen (e.g. a county, a city or a town) is entitled to secede ?

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Tue Aug 19, 2014 10:54 pm

Obviously you have not studied the preamble or its meaning or else you would know that it was the people of the states and not the people at large.


O'C, you have reached the point at which you are no reading plain English, I'm afraid. At least two other posters have gone into detail supporting and buttressing my basic construction. The Declaration refers to the "United States" as a nation, not thirteen nations or polities. The Articles pledge perpetual Union, a Union that antedates the establishment of the nation. The preamble, for the umpteenth time, starts with "We, the People of the United States..." and ordains and establishes the Constitution for the "United States of America." In none of these constructions is there a plain reference to a league of thirteen separate sovereign polities grouped for convenience. Thirteen colonies, whose primary political allegiance had been to the Crown, each a separate entity who had taken steps towards a Union, a Union that most certainly existed on 2 July 1776, became a nation, one nation, and one national polity; each State's (no longer a colony at the exact instant Lee's resolution passed) primary allegiance was now to the nation and the Union - to the United States. It was not under the rubric of "the thirteen States, associating under the style United States" that the Declaration was published - it was THE United States, in Congress assembled (for the Second Cont. Congress was the only branch of the national government in existence at that moment).

O'C, you lose on contract law, as Lincoln points out - no single party to a contract may dissolve it unilaterally. Furthermore, the US is not a compact, a treaty, nor a contract among thirteen sovereign polities. It is an indissoluble Union and has been described as such much more often than not, by a ratio too staggering to calculate.

You are entitled to your opinion. Your conception of this nation and Union, is, however, unfortunately I believe (for you are not unintelligent) predicated falsely, as can be shown, and has been.

Lincoln's rectitude as President is a separate topic. Present day difficulties in the Union, however germane, are not amenable to discussion, howsoever much they would illuminate.
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khbynum
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Tue Aug 19, 2014 11:11 pm

It's a good discussion, Mickey3D, and one from which I've learned a lot. The level of historical and legal expertise of the members of this forum amazes me. As to your question, I think if a State currently decided to secede, based for example on a referendum of state voters, they would have to submit that request to Congress. If a (simple?) majority of both Houses agreed, they would be allowed to do so. As I have argued and others have strongly and intelligently disagreed, the Constitution does not disallow secession, but neither does it provide a mechanism for it, so I'm guessing. The historical precedent against that course is graphically plain. As divisive as it would be, I'd like to see it happen in my lifetime (not secession, but a request to secede). I don't think we would fight over it again, but I'd like to see what the Supreme Court would say.

GraniteStater wrote:No.
And finally, the thread is "Could the ACW have been avoided?" Asked & answered - yes, obey the law.


I've made my alternate opinion obvious, I think. Abraham Lincoln could have prevented the war by the exercise of the statesmanship (and I use that term deliberately) of which you think him so capable. Unique times call for unique solutions and war (do as I say or I'll kick your a**) is not a unique solution. Very effective, though. Dare I mention that that one point of view errs on the side of exclusion ("my way or the highway") and one errs on the side of inclusion ("hey, let's talk about it")?

We're just repeating arguments that we (and others) have already made, perhaps ad nauseam. GraniteStater will never convince me the South did not have the right to secede and I will never convince him that it did. Any new ideas out there as to how the war could have been prevented, before it came down to secession?

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Wed Aug 20, 2014 11:00 am

Mickey3D wrote:A very interesting thread giving a lot of food for thought : thanks to all contributors and above all thanks to have kept the debate as courteous as possible despite the "hotness" of the subject.

A question to the people advocating for the right to secede : this position implies that if tomorrow the State of New-York (by example) decides to secede, nothing would prevent it ? Going further in the logic, does it imply that any group of citizen (e.g. a county, a city or a town) is entitled to secede ?


No. In 1869 the US Supreme Court ruled in Texas vs White that "the Constitution does not permit states to unilaterally secede from the United States and all the acts of the legislatures within seceding states intended to give effect to such ordinances was absolutely null'.
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Wed Aug 20, 2014 11:16 am

Ol' Choctaw wrote:And each state is recognized as independent by name.


Curious that 10 of these 'independent states' neglected to sign or ratify the document that gave them independence. I guess that they did not agree with its terms and are still in a state of war with Great Britain.
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Wed Aug 20, 2014 11:50 am

Le Ricain wrote:No. In 1869 the US Supreme Court ruled in Texas vs White that "the Constitution does not permit states to unilaterally secede from the United States and all the acts of the legislatures within seceding states intended to give effect to such ordinances was absolutely null'.


Thansk for the answer (my godness, how do you do to know such things ? :bonk :) and thanks to khbynum's answer.

But I think my initial question was misunderstood : I know that no secession would be allowed today (more than 600'000 mens died 150 years ago to make it clear...). My question was/is addressed to people advocating the constitution allow(ed) for secession : to which extent do you think this right applies ? Can this right be used only under some specific cases ? Is this right "inheritated" to a lower level (i.e. sub State level communities like county, city, ....) ?

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Ol' Choctaw
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Wed Aug 20, 2014 12:05 pm

Lincoln was a corporate lawyer and big government supporter. His argument was a gross distortion of the facts. Very few held those views and much fewer still actually believed they were right and true. They were a purposeful distortion.

As we view it today we view it through the lens of propaganda and legend making. The States all saw themselves as their own county joined into a larger league for mutual protection and benefit. If you had hinted they were less you would likely have had a fight on your hands.

Those who want to see this as “Over, Set In Stone, and Never Was” have to ignore a lot of factual information and founding philosophy.

I think it was Napoleon who said something to the effect that “History is the Lies told by Governments”. In this case it is the lies to support a strong central government and aided by those political interests who share that view.

Some people want to believe our government should be one way and some the other. I have only been endeavoring to find what I think is the truth of the matter but I also understand that I may have personal biases toward individual liberties, which could color the argument and I have tried to avoid those as much as I can.

Still, I find that that was what drove the founders in large part, though they feared the mob rule of democracy.

The Constitution does not speak directly to secession. It can be presumed in the 10th amendment but it is not stated. What is stated is how to handle insurrection in Article 4 section 4 which gives neither congress or the president wiggle room on what to do should it occur. That and the right of the people to revolution should be enough.

Lincoln’s view that states leaving the union was anarchy is preposterous and only an appeal to emotion. Most all his arguments against the breakup of the union were based on one fallacy or another. Madison clearly debunked the “We the People” argument in pointing out it was the people of the states, and not a nation of one people, as the Whigs would have had it. Jefferson clearly spoke of the possibility of forming three countries after his Louisiana Purchase. How else would different areas decide to go their own way if not by peaceful secession? Didn’t Maine secede from Massachusetts, even though it wanted to remain within the union as a new state? West Virginia seceded from Virginia but its admission into the union clearly violated the constitution at the time, considering Virginia’s secession was not recognized.

Lincoln and the Republicans were very bad on the constitution, choosing parts to enforce while clearly violation so much of it. Lincoln, himself, was known for this long before his ascendancy to the national level.




GS, I don’t know what to say to you to get you to see some of the obvious errors of your views. The founders repeatedly referred to the Constitution as a compact. Choosing to ignore that flies in the face of logic. On contract law you choose to overlook the legitimate and true assertions of the deep south states if you think it was unilateral. What we may think of much of these today is a different matter but it doesn’t make them untrue and not a violation of the agreement. Lincoln only sought to right one of those, leaving the others as a given, only to be endured.



http://www.endusmilitarism.org/secession_condensed-with_notes.html


My opinion is that war was more than avoidable. It was criminal. If Lincoln did not accept the secession of the southern states then his actions were actually treason. If he did take their actions as secession he brought about the war by refusal to negotiate a peaceful settlement and engineered a war of aggression.


Mickey 3D, smaller areas seceding would be a matter of the States to judge as with Main’s secession.

Le Ricain, even given the court that made the decision and its partisanship, show us where in the constitution that the Supreme Court is given the right to be the sole arbiter of constitutionality on an issue.

Given the principals of divided government, what would make you think that the founders would give to the federal government the ability of the federal government to be the authority on the powers they were given?

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Sun Sep 14, 2014 7:12 am

pgr wrote:And to push the question...

Compensated Emancipation. It was the model used in most of the world at the time. the U.S. could have jumped from slavery to Jim Crow without any of the messy warfare in between...


This simply couldn't have happened in the United States. The Dread Scott decision made it clear, following all of the shenanigans surrounding Kansas' state constitution (see Lecompton Constitution), and the decades of argument surrounding Slavery preceeding the outbreak of the Civil War, what the South's position was. The Slave states simply weren't willing to countenance the possibility of freeing the slaves; slavery was simply too partisan an issue.

Unless you go back to the 1830's and really change history (like preventing the US from taking on Mexico in the Mexican-American War), then I really don't think that there was a way to avoid the Civil War.

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Sun Sep 14, 2014 8:07 am

veji1 wrote:clearly, a clever way of using what one would call realpolitik to back up his principles, but what would have happened though if the fort(s) hadn't been attacked ? Do you think the Union would have eventually attacked or found a way to provoke another southern hothead in hitting first somewhere ?


A Southron would have attacked somewhere, eventually. PGT Beauregard did actually choose the time and place, that being Ft. Sumter, South Carolina in April 1861. Lincoln didn't exactly goad Jefferson Davis and company into shooting... all he did was send a resupply ship.

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Fri Sep 19, 2014 4:38 am

Well, hang on a minute. Davis was remiss in giving Beauregard permission to shoot when he felt like it. Lincoln was remiss in sending a resupply mission when he knew full well it would provoke an armed response. He goaded the South into firing first (which was exactly what he wanted) and they were hot-headed enough to do it. No war is inevitable. I'm currently reading about the years leading up to WW1 (a true nest of worms if ever there was one) and a parallel struck me: good men on both sides didn't say "this is a bad idea". In both cases, no one thought it could possibly happen, but with terrifying swiftness, it did.

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Fri Sep 19, 2014 11:42 am

ohms_law wrote:The Slave states simply weren't willing to countenance the possibility of freeing the slaves; slavery was simply too partisan an issue.

Unless you go back to the 1830's and really change history (like preventing the US from taking on Mexico in the Mexican-American War), then I really don't think that there was a way to avoid the Civil War.


+1

The only way to prevent the war would have been for the Republican to lose the presidential election. Given the overall situation in 1860, that seems very difficult.

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Fri Sep 19, 2014 11:55 am

khbynum wrote:Lincoln was remiss in sending a resupply mission when he knew full well it would provoke an armed response. He goaded the South into firing first (which was exactly what he wanted) and they were hot-headed enough to do it.


I think this is something still disputed by historians : Did Lincoln resupply knowing the South would attack (and trick them) or was he doing it knowing whatever could happen he would be the moral "winner" (South attacks, they are the agressor; they let the supply mission pass, the fort is still in federal hands).

Note also that the South was fully aware of the supply situation of Fort Sumter (R. Anderson informed them he would surrender the fort if no supply arrived soon) and that a supply mission was under way (and that no ammunition would be delivered) : The North had to send a supply mission (it would have been impossible for Lincoln to defend in front of the public opinion the surrender of the fort because he didn't send a supply mission), the South choose to break the "status quo".

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Fri Sep 19, 2014 1:21 pm

Mickey3D wrote:+1

The only way to prevent the war would have been for the Republican to lose the presidential election. Given the overall situation in 1860, that seems very difficult.


I'm not sure, based on what I've been reading in Battle Cry of Freedom and from other sources (my old school textbook, which is generally crap, but still tracks with everything else; and Wikipedia, just two name two) I don't think that the civil war could have been avoided even if Douglas had won. It may have been delayed a bit, but Douglas was already a "Northern Democrat" rather than just a "Democrat". Hell, if Breckinridge had won it may have been the North that succeeded!

Anyway, this: "South attacks, they are the aggressor; they let the supply mission pass, the fort is still in federal hands" is clearly why Lincoln chose to resupply Sumter. In my mind I don't think that makes him responsible for the war, though. I mean, it was clearly a Federal fort, with US troops... and whether or not you believe succession is legal (or constitutional), Lincoln's position that he was going to enforce Federal law is pretty unassailable. That's the President of the United States' primary job, after all.

I don't think that Davis was remiss, either. These were two rational, and level headed, leaders who were making rational choices based on the information that they had at the time. That's how the worst wars (like, as you mentioned, WWI) always start.

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Fri Sep 19, 2014 2:12 pm

ohms_law wrote:I don't think that the civil war could have been avoided even if Douglas had won.

I think the chance of Douglas were very low. I was thinking to a victory by Breckinridge. But I agree, it would just have been a delay : as you pointed it out, if the South could not change its position on the slavery issue (e.g. change of economical paradigm...not likely...), war was just the next step ahead.

Anyway, this: "South attacks, they are the aggressor; they let the supply mission pass, the fort is still in federal hands" is clearly why Lincoln chose to resupply Sumter. In my mind I don't think that makes him responsible for the war, though. I mean, it was clearly a Federal fort, with US troops... and whether or not you believe succession is legal (or constitutional), Lincoln's position that he was going to enforce Federal law is pretty unassailable. That's the President of the United States' primary job, after all.


Fully agree. Lincoln was forced to take some action (i.e. supply of fort Sumter) and as a seasoned politician Davis knew it.

Note that earlier in the year the South offered to pay for the Federal properties (including fort Sumter) and enter into a peace treaty with the United States. Lincoln rejected the offer as making any treaty with the Confederation would be a recognition of it as a sovereign government.

hanny1
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Re:

Mon Mar 06, 2017 11:04 am

GraniteStater wrote:I'm going to say one thing and one thing only.

Obeying the law and not having a temper tantrum because you don't like the results of an election would have prevented it.

It is indeed that simple, gentlemen.

The facts are that SC had passed an illegal ordinance before the incoming Administration had taken office. The facts are that six other states had passed similar illegal ordinances.

No law, Federal or state, that is repugnant to the US Constitution is valid - it is prima facie null and void (Marbury vs. Madison).

When Lincoln took his oath of office, seven states of the Union were defying lawful Federal authority and had openly asserted their willingness to continue this defiance by force of arms.


Thats Marshal, but it does not mean what you think, here is marshal explaining why VA can secede in teh debate over if to ace3de“We are threatened with the loss of our liberties by the possible abuse of power, notwithstanding the maxim, that those who give may take away. It is the people that give power, and can take it back. What shall restrain them? They are the masters who give it, and of whom their servants hold it.” (Elliot’s Debates, Vol III, p. 233.)
Justice Marshal:
Judge Pendelton agreed:


We, the people, possessing all power, form a government, such as we think will secure happiness: and suppose, in adopting this plan, we should be mistaken in the end; where is the cause of alarm on that quarter? In the same plan we point out an easy and quiet method of reforming what may be found amiss. No, but, say gentlemen, we have put the introduction of that method in the hands of our servants, who will interrupt it from motives of self-interest. What then?... Who shall dare to resist the people? No, we will assemble in Convention; wholly recall our delegated powers, or reform them so as to prevent such abuse; and punish those servants who have perverted powers, designed for our happiness, to their own emolument.


We have the evidence of those who signed it, Gouverneur Morris of Pennsylvania ,“a mere compact resting on the good faith of the parties.” That compact can be unilaterally broken at any point by the same people of the States which ratified it."



Secession is not repugnent to tne constitution, there being no bar against it in the constitution, but is allowed to happen because States ratified it as seperate states with the xpressed condition of secion included in state ratifications. all contracts are between those who sign and ratify, the federal governemnet is created by those who signed the Constitution, and acts as their representaivs. The Constitution creates the Federal government and defines and grants it authority to act in the Constitution, it had no sovreignty before the States gifted it to it to act on their behalf, it does not sign the AoC or the Constitution. It existed not before the States created it, and no one from it signs teh Constitution. Only competent authorty can enter into a compact, the federal Governemnt only becomes such after the required number of States ratified the Constitution.

You miss the central premise of the DOI, the consent of the governed, while being ignorant of who are the parties that create and are bound by the Constittion, Madison explaining it for us:
‘MW‘Who are the parties to…[the Constitution]? The people – but not the people as composing one great body; but the people as composing thirteen sovereignties.” This is because the UK crown who had sovreign rights over the citizens of the colonies, in the treaty of Paris passed it to the 13 seperate States, not to congress or the federal government.

Congress agreed with Madsion whenever they voted on the nature of the compact, “Resolved, That the people of the several States thus united by the constitutional compact, in forming that instrument, and in creating a general government to carry into effect the objects for which they were formed, delegated to that government, for that purpose, certain definite powers, to be exercised jointly, reserving, at the same time, each State to itself, the residuary mass of powers, to be exercised by its own separate government; and that whenever the general government assumes the exercise of powers not delegated by the compact, its acts are unauthorized, and are of no effect; and that the same government is not made the final judge of the powers delegated to it, since that would make its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among sovereign parties, without any common judge, each has an equal right to judge for itself, as well of the infraction as of the mode and measure of redress.

US Congreess 1833, motion passed and won by vote in congress


Resolved, That in the adoption of the Federal Constitution, the States adopting the same acted severally as free and independent sovereignties, delegating a portion of their powers to be exercised by the Federal Government for the increased security of each, against dangers domestic as well as foreign; and that any intermeddling by any one or more States, or by a combination of their citizens, with the domestic institutions of the others, on any pretext, whether political, moral, or religious, with the view to their disturbance or subversion, is in violation of the Constitution, insulting to the States so interfered with, endangers their domestic peace and tranquillity--objects for which the Constitution was formed--and, by necessary consequence, serves to weaken and destroy the Union itself.

US Congress 1860 motion passed 36 to 19 by vote in congress.

Madison to d Webster during nulification crisses, telling Webster he was just wrong It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as embodied into the several States, who were parties to it; and therefore made by the States in their highest authoritative capacity. (Letter from James Madison to Daniel Webster, March 15, 1833)​

Read the First Inaugural Address. Read it. Read the Articles of Confederation, wherein all agreed to a perpetual Union. Read the Preamble of the Constitution, wherein the six great objects of the instrument, the very purposes for which it was established, are set out: the first one is a "more perfect Union."

AoC was ended by each seperate state unilatewraly secedding untill NC and RI remained, they never leave, but the people of each state at convention enter into the newer Union under the Constition. Madison explains the union is more perfect because sovreign rights are ezxcercised by teh4 seperate people of the state, not their elected reps. The perpetual Un ion with england, given in colonial cjharters and given the seperate right of unliaterl secesion by james the first , which every colony was in was also ended by seperate states between 1774 and 1776. Theyhad done so beofe in 1689 when chosing which mionarch to follow and before that in the ECW in 1643 again choseingf parliment or Monarch.
The Constitution of the United States is not a contract, nor a compact between polities who had been exercising powers as completely sovereign states. As Lincoln asked, "When was South Carolina ever a sovereign State outside of this Union?"


Except it is both as you are taught in every law class. SC is shown to be so in the Constitution, which requiresa the consent of 9 AoC members to give it authoritive power, if SAc did no acede, it is outside the Union, and still in the AoC and still soveriegn. Not least because its state constitution asserst it to be soveriegn state.“We, the Delegates of the people of Virginia do, in the name of the people, declare that the powers granted under the constitution, being derived from the people, may be resumed by them whensoever the same shall be perverted to their injury or oppression. . . .[On this basis], we do assent to and ratify the Constitution recommended, on the 17th day of September, 1787.” (Elliot’s Debates Vol. I, p. 327.) Others states had the same, all have it once the 1oth amendment comes into force.


The several States do, indeed, retain all powers not granted to the Federal government by the Constitution, but the grant of power to the Federal government was granted by the sovereign people of this nation, a nation conceived in the matrix of the Union, a Union which antedates the nation itself, the Articles, and the Constitution. Indeed, George Washington took lawful command of the Continental Army under the authority of the Second Continental Congress, which was the lawful instrument of this Union before the Union, and the good people thereof, had declared themselves to be a nation, a nation conceived in liberty and whose nationhood is predicated upon the principles enounced by Jefferson in the Declaration. As Jackson said during the Nullification Crisis, when SC had tried this nonsense once before and declared it would not enforce Federal law and hinder its execution: "The United States is not a league. It is a government."


Jacksoin citied the same law Lincoln used to call up the militia, he was told thats a crimi al act and he would be impeached, by D Webster, he instead sought and gained a force act from congress. Sinbce the constitution in no article moves sovreignty to the federal governmnet except where exprisly granted, it temains, asa right of the sovreign, with the people, who are those who acede or secede from treaties.


Gentlemen, you may trot out any and all documents and essays and whatever you wish, but you cannot escape the facts of history, as Lincoln so succintly and dispositively demonstrated in his first Inaugural Address and which I have recapitulated here.


Except lincoln cites no law just gives incorrect opinion and sells a story to the dim witted.


The Union created the nation; the nation created the Articles and the Confederation, the nation replaced that instrument with a new one, the Constitution. The people of this nation, all of them, are the source of sovereignty and lawful authority. No polity, no hamlet, town, village, city, county, nor any state may, on its own accord, declare that it is no longer part of this Union nor refuse to obey and abide by the laws enacted by the Congress of the United States.


Not bad history, not history at all.

Madison for example to explain the Constitution to you since you fail to grasp its import :
If we consider the federal Union as analogous not to the social compacts among individual men: but to the conventions among individual States. What is the doctrine resulting from these conventions? Clearly, according to the Expositors of the law of Nations, that a breach of any one article, by any one party, leaves all the other parties at liberty, to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach.


On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.


That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.

When one feels that a law is unconstitutional, one may go to court. If one doesn't like the decision, one may appeal. If the court of final appeal renders a judgment not to your liking, you have a political process available to, in the course of time, correct a perceived injustice either through elections and appointments or by the amending of the US Constitution.


All bases in UK law, and the ultimate remidy is to use force if required to secede, as gaurentted by Magna carta when the sov p[ower does not rule acording to the law, since every first wave states aserted that slaery was not to be permitted in thje terr of thew Union, this federal breach allows secession asa remidy, as set out again by madson as the lawfull action of teh people.

Madison was quite clear it wasa federal republic, each state bound nly by its own vol act, to creatyea singl;e nation was proposed and rejected by every state but one, so we know your post are fantasy not fact, Madison http://www.freedomformula.us/articles/f ... araphrase/

The ratification by the people separately from so many independent states will be a federal and not a national act. It is obvious from this single consideration that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the states. It must result from the unanimous assent of the states that are parties to it. This is no different than their ordinary assent to matters of their states other than it is being expressed, not by the legislative authority, but by the authority of the people themselves. If the people were regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States, would bind the minority; in the same manner as the majority in each state must bind the minority. The will of the majority would have to be determined either by counting the individual votes nationwide or by considering the will of a majority of the states, as evidence of the will of a majority of the people of the United States. Neither of these rules has been adopted. Each state in ratifying the Constitution is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act. In this regard the new Constitution will be a federal and not a national Constitution.


There is one, and only one, set of circumstances, by which any just man could possibly advocate armed resistance to Federal authority and that is an unmistakable attempt to establish a tyranny and overthrow Constitutional order and the rule of law.


Which is why teh second wave secedeedd over coercion of the first wave and ilegal use of the militia act, which does not give potus the right to coerce states against the Union, only parts of a state agaionst the state itself.


Northern states agreed they would do so in teh same circumstances.

Caldrv Bull 1798, Justice Chase who also signed the DOI for Mass.
The nature and end of legislative power limit the excercise of it.This fundamental principle flows from the very principle of our free Republican government, that no man should be complelled to do what the laws do not require, nor refrain from that acts the laws pemit. These acts whether federal or state, Legilsature cannot do, without excedding their authority.There are ceratin fixed vital principles in our free republican governments, which will determine and overule a flagrant abuse of legilsative power, as to authorise manifest injustice by posutive law, or take away that security for personal liberty or protection private propertry whereof the government was established.
Upto the creation of the Republican party practiacly every state used threats of secesion as the norm, to get a better comrimise. This is waht the Republicnas said was wrong with the system, it was placing the majority at the mercy of the minority and preventing things betting done that the majority wanted. but thats the whole point of the constition, it was excatly amde to do that to prevent exactly that kind of theng! and is an undeniable product of a Union of equal state in vol Union. The Republicans were the revoltionarys, they wanted to end the ststes rights and repalce it with majority rule. Now the Southernstates stood on the principle of consent to be governed, and its only when incoln uses coercion that the WBTS starts, slavery had abeen a moral fulcrume to move public opion and sentiment to be sure, just as the tariff was used as a economic fulcrome, but the issue was soley on the form of government and who would control the federal Union. The republ;icans found a wayt to make their section dominate in perpetuaty by forbidding the extension of slavery into new states, this ment that soverthen state would be unable to effect federqal government because they would alwyas be outvoted in the future, or by using the rules of the game the Republicans had found a away to be in power for the next century, which is what happened anyway pretty much, this was no different from the Southern ststes haveing been in control for the prev century and doing things there way.
Hayne crushed webster argument in Congress,

Sir i put the case home to the gentleman.Is there any violation of the constition rights of states and the liberties of citizens, which if sanctioned by congress and the Sc, he would belive to be thright and duty of a state to resist?.Does he contend for the right opf passive obiedience and non rsoistance?.Would he justfioy open resistance to an act of congress, sanctioned by the courts, which would abolish trail by jury?, or destroy freedom of religion or freedom of the press/. yes he would advocate resoistance in such case and so would i, so would all of us.But such reasistance in his doctrine would be rebelion and revolution, in mine it would be legal and constional resistance.
So what does secesion do?, well it romoves from the whole that which the whole did not own, so the whole losses nothing it had a claim on, it losses access to resources etc it had access to and will no doubt now miss, it is a peacfull remedy that could otherwise require force to settle, now if there is an undeniable right of revolution to abolish government whay is there not a peacfull and lawfull way to remove yourself?, easy peasy there is, its called secesion, you cannot be a member of the UN and not have signed the aceptence of the constional right of secesion contained in your entry into the UN, there are no countrys not in the Un btw. USA currently usses this as part of its legal protection and aceptence of Taiwan secesion from China. Where does the principle come from?, it comes from Romns sessio, in which the plebs when the patricians passed a law they felt unjust simply left the city and went to beocme citizens in another city and left the patricians with no one to govern, when they repealled whatever law that upset those it governed, the plebs returened to pay tax, be sent to war and generally be governed.

Madison, Federalist Papers, Number XXXIX.
"The Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but this assent and ratification is to be given by the people, not as individuals comprising one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State — the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national, but a federal act.
That it will be a federal, and not a national act, as these terms are understood by objectors, the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority; in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States, as evidences of the will of a majority of the people of the United States. Neither of these has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its voluntary act."
"When resort can be had to no common superior, the parties to the compact must themselves be the rightful judges, whether the bargain has been pursued or violated."
Last edited by hanny1 on Mon Mar 06, 2017 11:28 am, edited 2 times in total.

hanny1
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Re:

Mon Mar 06, 2017 11:08 am

http://housedivided.dickinson.edu/si...nd-war-powers/
CLOSE READING ASSIGNMENT


LINCOLN:


I decided that the Constitution gives me war powers, but no one
knows just exactly what those powers are. Some say they don’t
exist. I don’t know. I decided I needed them to exist to uphold my
oath to protect the Constitution, which I decided meant that I could
take the rebels’ slaves from ‘em as property confiscated in war. That
might recommend to suspicion that I agree with the rebs that their
slaves are property in the first place. Of course I don’t, never
have, I’m glad to see any man free, and if calling a man property, or
war contraband, does the trick… Why I caught at the opportunity.


Now here’s where it gets truly slippery. I use the law allowing
for the seizure of property in a war knowing it applies only to the
property of governments and citizens of belligerent nations.


But the South ain’t a nation, that’s why I can’t negotiate with
’em. So if in fact the Negroes are property according to law, have I
the right to take the rebels’ property from ‘em, if I insist
they’re rebels only, and not citizens of a belligerent country?
And slipperier still: I maintain it ain’t our actual Southern states in
rebellion, but only the rebels living in those states, the laws of
which states remain in force. The laws of which states remain in
force. That means, that since it’s states’ laws that determine whether
Negroes can be sold as slaves, as property – the Federal government
doesn’t have a say in that, least not yet – (a glance at Seward,
then- then Negroes in those states are slaves, hence property, hence my
war powers allow me to confiscate ‘em as such. So I confiscated ‘em.
But if I’m a respecter of states’ laws, how then can I legally free
‘em with my Proclamation, as I done, unless I’m cancelling states’
laws? I felt the war demanded it; my oath demanded it; I felt right
with myself; and I hoped it was legal to do it, I’m hoping still.


(Tony Kushner, “Lincoln,” p. 26-7)





GUIDING QUESTIONS


After you have organized an outline or chart of Lincoln’s key arguments in this passage, try to answer the following questions:


1. In the context of the Civil War, what is the meaning of the following words or phrases: war powers, confiscation, contraband, and belligerent? Are there other words in the excerpt that need definition?


2. How does Lincoln describe the process which was leading him to conclude that only a constitutional amendment could truly end slavery in the United States?


3. Why was the problem of ending slavery during the Civil War so “slippery” as Lincoln describes it? Were the obstacles that Lincoln is describing here mainly political, legal or social?


SHORT WRITING ASSIGNMENT


The passage attributed to Lincoln in this script is not something he actually said, but has been imagined by the scriptwriter Tony Kushner to represent various arguments in favor of emancipation policy that President Lincoln and his supporters used during the course of the Civil War. Consider the following real quotations from Abraham Lincoln and compose a short informational essay that tries to explain how the script seems to be summarizing aspects of these historical statements:


Abraham Lincoln’s First Inaugural Address, March 4, 1861


“Apprehension seems to exist among the people of the Southern States that by the accession of a Republican Administration their property and their peace and personal security are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that—


I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.


Abraham Lincoln’s Special Message to Congress, July 4, 1861


“Lest there be some uneasiness in the minds of candid men as to what is to be the course of the Government towards the southern States after the rebellion shall have been suppressed, the Executive deems it proper to say, it will be his purpose then, as ever, to be guided by the Constitution and the laws; and that he probably will have no different understanding of the powers and duties of the Federal Government relative to the rights of the States and the people, under the Constitution than that expressed in the inaugural address.”


Abraham Lincoln to James C. Conkling, August 26, 1863


“I think the constitution invests its Commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there–has there ever been–any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy?”


Abraham Lincoln to Albert Hodges, April 4, 1864


“I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government—that nation—of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it.”


ANOTHER VIEW


From Matthew Pinsker, Director, House Divided Project:


Not every historian would accept the way Tony Kushner conveys Lincoln’s views. One of the biggest arguments concerns this question of “confiscating” slaves as property in order to free them. According to the script, Lincoln denies that slaves should ever be considered as property but admits that he “caught at the opportunity” in order to set in motion his emancipation policy. On the surface, this appears to be what he wrote to Conkling in 1863 (“The most that can be said, if so much, is, that slaves are property,”) but a careful reading of that document –especially in context– suggests that was not what he believed or what he actually did –but rather he was saying this was what even his political enemies had to concede if that was truly their belief (“The most that can be said…”).


What the script does not quite have the space to explain is that “confiscation” was a congressional policy, created in two separate laws (August 6, 1861 and July 17, 1862) that ultimately authorized the president to make rebel-owned slaves “forever free.” This was the real trigger for Lincoln’s initial emancipation decision in July 1862. However, congressional confiscation made a careful distinction between punishing rebels by confiscating their real property (such as their plantations) and by freeing their slaves. The confiscation law treated these enslaved people not as property but explicitly as “captives of war.” In other words, federal law never recognized the principle of property in man. Only states laws did that. This is a critical insight made clear in James Oakes’s book, Freedom National (2012) and which is documented here in this Emancipation Digital Classroom. This also helps explain why the Emancipation Proclamation refers to “persons held as slaves,” and does nothing to recognize them as property or to invoke asset forfeiture law in order to “seize” them. Instead, the proclamation calls their freedom “an act of justice,” and addresses them directly as people with natural rights. See this video from Matthew Pinsker for a more complete explanation of that point.


The script also appears to make a mistake by having Lincoln assert that the laws of the states in rebellion remained “in force.” This was never his view. In fact, almost all of the extraordinary presidential measures he embraced from the beginning of the war until its conclusion –whether it was calling forth the militias, suspending habeas corpus, emancipating slaves, or setting conditions for reconstruction– were done in the name of substituting executive action for laws that were clearly not in force. When President Lincoln invoked the international “laws of war” as Commander-in-Chief, he was able to do so to suppress a domestic rebellion. Some measures –such as setting foot a blockade– did suggest implicit recognition of Confederate sovereignty– but even as Lincoln was denying that sovereignty in public, he was never claiming to be bound by southern state laws during a time of armed rebellion. According to Lincoln, Confederate states were neither independent of nor controlled by the federal government during the Civil War. They were quite literally “in rebellion” and subject to the laws of war.

hanny1
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Re: Could the Civil War have been avoided?

Mon Mar 06, 2017 11:19 am

Abraham Lincoln to Albert Hodges, April 4, 1864


“I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government—that nation—of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it.”

Here Lincoln explains why he committed treason. Post war Davies demanded to be trued for treason, the first 4 uS lawyers advised Stanton they could not win, as did Lieber, and quit, that left the AG who had no choice but to take the case,, who told Stanton he would lose and the governemnt would lose all they had gained on the battlefield, Bledsoe had between Lincon 17 times ion court loseing only once and was Davis lawyer, and was certain he would win in court.

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