The War Between The States Discussions

Discussion in 'Civil War' started by Zonie, Jul 19, 2019.

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  1. Oct 14, 2019 #2161

    tenngun

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    It was in the constitution but most often when written was small U.
    Please keep in mind people voted to join they did not vote away their children’s rights to unjoin.
     
  2. Oct 14, 2019 #2162

    arcticap

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    I believe that we have discussed the topic about a legal exit from the US in the earlier thread.
    It would require a Constitutional Amendment expressly permitting states to leave by establishing a legal framework or procedure to exit, or an Amendment for the Union to dissolve itself in order to be able to legally reform under a new legal structure if any.

    Imagine if the south seceded, and the President and the Congress chose to not act.
    They could be voted out of office by the people who opposed their policies, after which the new office holders could wage war.

    Even if it took 100 years for the new office holders to declare war, there would still be a legal basis to justify war.
    Whether the action would be war, an embargo, convert or overt action, or enlisting the aid of an alliance of nations, those would all be legal options.

    I think that the same legal theory would apply if the Federal Gov't, tried to kick some states out of the Union which didn't want to be kicked out.
    They could probably appeal to the Supreme Court asking for the action to be declared illegal, null and void.
    All of the inhabitant citizens of those states would still be citizens of the United States.

    Nearly every thing in the modern world has a legal basis of some sort which is the reason why there is a Constitution.





    Yes, legally they basically did unless their children want to leave on their own, renounce their citizenship and go to another country.
    Or they can go find an unclaimed island and live there, or go live on a boat in the middle of the ocean.

    They can always choose to fight and if they lose then spend a long time in jail.
    That's what their forefathers signed up for.
    That's certainly better than hanging or being drawn and quartered.
    As long as they remain citizens they are bound to honor and obey the laws, including if conscripted.
    It's not okay for parents to sign away the lives of their offspring to be US citizens unless they voluntarily renounce their citizenship and go to live somewhere else?
    It's totally reversible based on the individual's choice.
    The laws are very powerful establishment tools.
    The founding fathers left a lot of leeway to change the laws, but certain procedures still need to be followed in order to be legal.
    And there's also procedures to win a rebellion which would include signing a peace treaty of some sort, another legal document.
     
    Last edited: Oct 14, 2019
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  3. Oct 14, 2019 #2163

    Straekat

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    Never underestimate the emotional appeal of not being able to admit one's ancestors and family members fought for a bad cause and a lost war, regardless of whether they were conscripted and forced to serve or were willing volunteers.

    Emotional issues related to the idea blacks and whites would be on an equal social footing if slavery was abolished was enough to drive many southern white farmers to defend family and hearth from the idea a black man might be too friendly with white women. That idea is found in more than a few period reasons related to the argument for secession.
     
  4. Oct 14, 2019 #2164

    Straekat

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    I doubt it was not the result of a literacy problem or spell checker that didn't work? ;-)
     
  5. Oct 14, 2019 #2165

    tenngun

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    So why were their fathers and grandfathers not encouraged to just go west to leave their homes and build a new land in the woods beyond the control of England.... because South Carolina or Massachusetts belonged to the people of the colonies or later the states, not to a government in London or Washington.
     
  6. Oct 14, 2019 #2166

    Carbon 6

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    I'd like to see the majority of examples with United states having a lower case U.

    As for "un-joining" every person has the right to leave, to expatriate. You just can't steal a state away from the Union and start a new country within the United states.
    That too is in the constitution. The Admission to the Union Clause forbids the creation of new states from parts of existing states without the consent of both the affected states and Congress.

    Failure to obtain congressional approval is what made secession illegal.

    Keep in mind the battle for secession had been going on in congress for at least 10 years prior to the civil war without the south being able to win.
     
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  7. Oct 15, 2019 #2167

    Straekat

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    Roman law is largely irrelevant to the body of British and American law, although it was part of the basis of European laws until the 19th century. Roman "law" considered citizens of the Empire and subjects who were not citizens having different legal protections and punishments, in addition to Roman citizens not being considered legally subject to the laws of other regions outside the empire, or simply put, they felt a Roman could only be tried according to Roman laws wherever he happened to be in the entire world. Although vestiges of Roman law were part of several legal systems in western Europe until the 19th century, they were never part of the American system, and not part of the British legal system after the re-establishment of the monarchy after Charles II, "Roman" law is irrelevant to this discussion. Can you keep your references to the time frame of the forum, and in particular, this thread, i.e, America up to the 1860s? Please try, otherwise the comments sound like shucking and jiving.
     
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  8. Oct 15, 2019 #2168

    Straekat

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    The British didn't encourage expansion over the Alleghenies/Appalachians because they considered western expansion was a slippery slope, and bred all sorts of potential conflicts with ownership claims, possible wars with indigenous populations of not only Amerindians, but French settlers and their descendants who settled there before "English" people arrived and disputes started and then spread eastwards over the mountains.

    The British could not encourage people to leave the borders of the colonial system and move westwards into lands where the British had not legal authority or claims to ownership, without risking wars the British Empire was always wondering who would pay for them.

    You should take time and read about the how land ownership in the United States and various states came about. There is no single system, and in fact, ownership can be complicated.

    During the colonial era, the British government claimed land and allocated charters for colonies, without regard to whether they had a legal claim to the land that was part of the colonies being set up. The early United States largely accepted pre-existing state boundaries and land ownership claims made before 1781. After the United States began acquiring land-ownersip of Indian lands through treaties, wars, and purchases, the US government owned ALL land until there was an official transfer of title to specific lots/tracts and sections. Although the United States could create a territory and eventually a state, the land within that area belonged to the government. The new state could not claim to own land within it's boundaries unless the federal government gave the state a legal title to specific lots/tracts/sections, otherwise it was federal, never state property.

    When the US government purchased land from France in 1803, the land belonged to the government, not the states that were created out of those areas afterwards. The federal government could create a state, and assign some of the land within those boundaries to that state, while still retaining sole ownership of land not specifically deeded to the state when it was created. The same thing applied to all unclaimed lands in the remained of the west when purchased or acquired by the government after 1781. West of the Missouri River, there are large tracts of land that were never officially transferred to the states within the boundaries they are now in, and never were "state lands" then, or now.

    In 1834, South Carolina sold the island Sumter would be built on in the next few years, PERMANENTLY to the United States government, knowing a fort would be built there, and SC was forever relinquishing any and all future claims to the island. That sales agreement was binding on any and all governments that came afterwards, and the only way the island could revert back to South Carolina was by an official grant of title by the United States to SC. That never happened before, during, or after the war.

    Something to considered is the amount of land in the western United States that is owned by the federal government. Although it may not be occupied, and termed "public lands" those places are very much in the realm of being owned and controlled by the US government. In California, almost 50% of the land is owned by the Federal government, and not the state of California or private ownership.
     
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  9. Oct 15, 2019 #2169

    Straekat

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    Chalk it up to people cherry picking words, phrases and "talking points" taken out of context, then mashed together to create a justification for their point of view regardless of facts and laws suggesting otherwise.

    Secession and claims to being able to form a new government because you don't like what the people in power are doing is a slippery slope with no way to establish clear distinctions. It does nothing to create compromise or promote peaceful resolution to problems.
     
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  10. Oct 15, 2019 #2170

    tenngun

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    1) I was pointing out the fallacy of your argument that something has to be made legal first. As the precedents have been the other way around.
    2) our concept of rule of law, the relationship between citizen and state, rules of evidence, function of courts, all go back to Rome.
    Our language of law is Latin. Our concepts of law are Roman( possibly Etruscan, but we don’t know how much.)
    Trying to see events at any time without looking at the flow of events up until that time is a null exercise. It leads to the greatest stumbling block in studying history , that of seeing the past as compared to today and not as seeing the past for what it was then.
     
  11. Oct 15, 2019 #2171

    tenngun

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    Then why was it ok for the colonies?
    Why was it ok for West Virginia. For Mexico, for Texas, for Ireland?
    It’s ok for all the world except the eleven states of the confederacy???
    What exactly was the south’s recourse? What compromise could exist?
    Their future was to be closed out of the house, be a silent back bench in the senate, no chance of influencing a presidential election, judged by courts where in the judges were appointed by men antagonistic to their whole region.
    Their choice was to be ruled by a north sans a say in the direction the country went and suffer silently under the north’s rule or to fight for their basic human rights.
     
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  12. Oct 15, 2019 #2172

    Straekat

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    Your points 1&2...

    The idea you're pushing is literally, if there's nothing in the law saying it's illegal, then you can do it.

    To that....rubbish. Pre-existing laws are often interpreted in ways the original intent was never thought of. It's done all the time. The south's actions made the matter secondary by doing something far more serious and consequential, and extralegal. The debate about secession was never resolved by asking the Supreme Court to make a determination, because the southern confederacy turned a debate over secession into a full fledged war and widely opened the door to being deemed a rebellion, giving the Federal government all the legal authority it required to smash it.

    South Carolina was the first state to secede, on December 20, 1860. On April 12, 1861, slightly less than a full four months later, Sumter was fired on. That was not long enough for the Supreme Court to even consider hearing the matter, let alone determine placing it on the court's calendar. The southern confederacy's unilateral action denied the Lincoln administration any opportunity to determine legal matters at hand, before the situation turned into an armed rebellion.

    The south's firing on Sumter took any debate off the table and instead placed the more pressing concern of armed rebellion front and center.

    3#. "Roman" or "Roman Catholic" law? The former was superseded and altered in a way the ancients Romans would never hae recognized, by the latter. What you are referring to as "Roman law" was Roman in name only, and primarily ecclesiastic laws derived from a very different base, and motivations.

    The Holy Roman Empire is an example of a name. Because something has a similar name, that does not mean it is related to, or sprung from the other.

    There is a use for historical overviews, however, they should be as close to the period as possible, otherwise they come across as being extraneous examples that more often cloud the actual issues and create red-herring type statements. If you want to use the most appropriate examples, those of the same time period are the best to use and most closely related.
     
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  13. Oct 15, 2019 #2173

    Straekat

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    You're mixing apples and oranges together, as usual.

    Ever hear me defending what the colonists did to justify armed rebellion as legal? I never have. It was an armed rebellion. The 2nd Continental Congress attempted to justify the war once fighting started through the Declaration of Independence, not before, but after the fact. It was and always be a post-facto rationalization for rebellion.

    There are various definitions for what is a rebellion, or a revolution. I prefer a relatively simple one. Depending on your viewpoint, the victor gets to call it what they want. An attempt that doesn't pan out is a failed rebellion. One that does is a revolution. Reading between the lines, the American government typically calls the war fought between 1775 and 1781/3, a revolution, and southern aggression starting with shots fired at Sumter, a rebellion.

    In 1863, the US Congress legally created the new state of West Virginia as it could legally do based on the Constitution's permitting a pre-existing one being divided into two (or more) entities. Congress had the power and authority to do so, and did not need the permission of the state government located in Richmond, that was currently in a state of armed rebellion, to do.......a-n-y-t-h-i-n-g.

    All of the other revolutions you mention? I don't take sides or pretend one or the other is justifiable based on my personal political viewpoints. More often that not, if you aren't living during the time period events happened, and residing in those countries, your viewpoints may be biased and ill-informed.

    Right versus might? No, but there is something that is more relevant, and that is squarely facing political, economic, and military realities that wishful thinking isn't going to change. There are many things about life that might not seem fair, and warfare often causes more blow back than other means of working to create change or alter the "facts on the ground." My own viewpoint is, let countries determine their own internal politics, don't try to influence those internal events, and when the dust settles, deal with the new circumstances and get on with the new or changed situations.

    Whatever you care to call the American government, Churchill's famous quote ""No-one pretends that democracy is perfect or all-wise.....Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time" applies.

    The American Constitution and government was framed in order to establish a system based on the ballot box, a system of laws and a representational government that was subject to regular elections in which politicians could be routinely elected or removed from office through new elections and legal means, smooth transfers of power when elected officials handed over their offices to newly elected ones, and above all, to prevent warfare and peace between fellow states that were part of the same nation.
     
  14. Oct 15, 2019 #2174

    Straekat

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    On April 12, 1861, there were only 7 states forming the southern confederacy. The other four claimed secession, after the war had begun, and had joined an open rebellion against the Federal government. The distinction might seem small to you and perhaps others, however, it is significant, because what is done during peacetime or wartime, can result in different very different responses.

    The distinction between WHEN something is done, and if it's "peacetime" versus wartime/rebellion are important, especially if it's wartime and actions can be legally deemed and punished under laws defining desertion, treason, and rebellion.
     
  15. Oct 15, 2019 #2175

    Straekat

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    Ah...so being outvoted and a "my way or the highway" attitude was more important to the south wanting and trying to be in charge, than being part of a greater entity or community "of the entire people" than their own growing limited viewpoint and vision of how they wanted America to be?

    If you want to participate in the American system of government, there are time you might be with the majority, and other times when you aren't. There's a saying in business, if you sign up for profits, you are also signing up for potential losses.

    In the business world there is also the concept of a contractual agreement between two or more parties. Based on contract law and by centuries of custom, if a contract does not have an explicit termination date, or expressed terms that state how a contract can be dissolved by consent of all parties to the agreement, it runs in perpetuity with no expiration date.

    The Constitution is a contract, and states how new states can be admitted and there is no implied or explicit end date or term when it expires. Ending or leaving that contract carries an implication (according to American and British contract laws) that ending it if one of the parties wants out and other don't is only legally possible if the other parties agree, or through the court system were a legal and binding decision can be made, and thus enforceable.

    Perhaps some people never think of the Constitution as a contract, however, it certainly meets all the parameters of one, and can only be dissolved by consent of all, or if not all, then through the court systems.

    Ergo, unilateral secession was and is illegal from the standpoint of contract law, even if not explicitly discussed one way or the other in the Constitution. This is an obvious example of if one law doesn't cover secession, another law can easily be applied. Claiming secession is legal is dubious when the idea of membership in the UNITED States is a contractual agreement and there is no termination date in the Constitution, or in the act of Congress admitting a new state.
     
  16. Oct 15, 2019 #2176

    Carbon 6

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    No, I think what Tenn is saying is that it's OK to take what you want by force, just like the Romans did.
    All his examples involve actions that resulted in conflicts.
    So what is really being said is, It is not legal to secede but secession demands war. This fact was actually trumpeted by some secessionists in the ten years prior to the civil war.
    So, what have we learned ?
    That the secessionists knew damn well that seceding would result in war. So the idea that the North was the aggressor is a complete fallacy.
     
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  17. Oct 15, 2019 #2177

    Straekat

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    Ahh...I might be getting the idea now.

    Roman law is ok to justify some stuff you want/like/rationalize, and then ignored when the Roman principle that all men are born free becomes inconvenient?
     
  18. Oct 15, 2019 #2178

    Carbon 6

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    The Romans had slaves too and their aristocracy was similar to that of the slave holding plantations.
     
  19. Oct 15, 2019 #2179

    arcticap

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    That's the same old rhetoric that doesn't apply to the civil war since it was almost 100 years later and the United States had matured to have its own legal system.

    When you say that a state belongs to the people, what I think that you really mean is that the citizens of a state have a right to be part of it's self-gov't, and elections.
    But the state gov't. can only control that which it has lawful jurisdiction over.

    And since secession wasn't a legal option under the Constitution.people were free to leave at anytime, but not to take up arms against the Federal gov't..
    That was what the states agreed to when they ratified the Constitution.

    But 100 years before the civil war, it wasn't what the colonists agreed to under the then totally different British legal system where they didn't have representation.

    It might appear that all rebellions are the same, but they're not since they all have a different legal, moral and political basis or background that will reflect their historical differences.

    Colonies are not the same as states, just as London and Washington had a vastly different type of legal and political relationship to the American people.


    This was explained. The Republicans didn't have a majority,
    There could have been reparations, a transitional phase away from slavery or no change at all due to a lack of anti-expansion of slavery votes.
    Some northern states elected Democrats.
    Many northerners were sympathetic and didn't want war.
    Slavery could have lasted for quite a few more years,

    The reason why Lincoln said that "A government that allows secession will disintegrate into anarchy." is because our new form of democratic government
    is about respecting the will of the majority since the people are vested with the power and are self-governing.

    Democracy allows for the peaceful transition of government to suit the changing needs and popular opinions of the majority of people in a peaceful fashion
    and within the legal framework.
    The rights of the minority are largely protected by the Constitution, by filibustering in the Senate, and by the checks and balances of the branches and levels of gov't.

    Otherwise it's just one violent political rebellion after another which is costly, destructive and leads to a "disintegration of society."
    Who wants to keep rebuilding their society over and over again when democracy allows for a peaceful transition over time as opinions can change with
    each election cycle or not.
    It can require a lifetime for major changes to occur as with slavery.
    Lincoln said in his first inaugural address that by " rejecting the majority principle, anarchy or despotism in some form is all that is left."
    It sounds like he knew what he was talking about before secession even happened.
    It was the south that forced the war by rebelling without a truly just cause and without any harm done to them.
    Lady Justice is blindfolded and holds the scales of justice for a reason.
    The justifications for any other rebellion are not a valid comparison since each has its own circumstances and can tip the scales of justice differently.
    Nations and states are considered to be a lot like individuals which means that each one or their disputes are as unique and different as are the outcomes.

    lady-justice-stock-photography-royalty-free-statue-goddess-of-justice.jpg




     
    Last edited: Oct 15, 2019
  20. Oct 16, 2019 #2180

    Zonie

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    Just thinking about it, I wonder what would have happened if South Carolina and a few other disgruntled States would have sued the United States to allow them to leave it.

    I can see the Southern States doing what tenngun is trying to do and arguing that escaping from the rule of a government that no longer serves their people but constantly works against their desires is harming their State. I'm sure they would point out that the original 13 colonies had similar grievances against England when they rebelled and they could make a good point with that argument.

    I can also see where the United States could argue that by joining the United States, the States wanting to leave were proposing a violation of a non-ending contract between the States and the United States. A contract which would require the agreement of all of the states to to allow the States who wished to, to leave.

    What an interesting case that could be. One that a professor of law who is interested in history could propose as a assignment for a class project. :cool:

    Of course if the arguements went on as long as they have on this forum it might need to be a 4 year class. :(
     
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