Secession FSL 1850 Breach of Contact and the Compact Theory

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On a different thread @cash posted about a number of secession documents blaming the dastardly Yankees not returning slaves as forcing the Secessionists to secede.

Continuing the idea.
The Declaration of Causes of Seceding States - Civil War Trust

South Carolina

In the state of New York even the right of transit for a slave has been denied by her tribunals; and the States of Ohio and Iowa have refused to surrender to justice fugitives charged with murder, and with inciting servile insurrection in the State of Virginia. Thus the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation.
Avalon Project - Confederate States of America : Documents
Mississippi
It has nullified the Fugitive Slave Law in almost every free State in the Union, and has utterly broken the compact which our fathers pledged their faith to maintain.
IMHO I do not understand this. SCOTUS had made personal liberty laws subordinate to the Federal Slave Laws. Prigg v Pennsylvania, Ableman v. Booth. There is Lemmon v. New York with Taney looking to make to make slavery national, by blocking state laws freeing slaves. It appears that in 1860, outside of the election of Abraham Lincoln as president, the slave owners are winning.

In addition the laws were not strictly enforced Prigg was not the only one to openly attack the Personal Liberty Laws. Many of these laws were ignored by officials of the law and judges.
Also Cyclopædia of Political Science, Political Economy, and the Political History of the United States

So what is underlying this?

The Fugitive Slave Act of 1850: Symbolic Gesture or Gesture or Rational Guarantee? Jeffrey Rogers Hummel
Third, these very same scholars, however, virtually dismiss the problem of runaway slaves. The number of runaways -- perhaps a thousand per year -- seems too small relative to a total slave population reaching nearly four million by 1860 to have made much difference. As Peter Geyl (1961, p. 198) asks, "were a few hundred fugitive slaves worth the risk of getting enmeshed in a destructive Civil War?"

... We are thus left with the paradox of slaveholders insisting upon a measure that was simultaneously unnecessary and counter-productive....
Jeffrey Rogers Hummel offers 2 possibilities, one financial and one political. For this thread, I will follow the political.

Ibid
Equally important, we show that the fugitive slave act held important consequences for long-term coalition politics within the nation...We show that the act was part of a continuing and realistic effort by Southerners to maintain a secure home for the peculiar institution within a nation at best indifferent to slavery...Southerners thus faced significant uncertainty about the future in passing the Compromise of 1850: would their northern coalition partners vote to admit a slave state at a future date? Put in coalitional terms, did the Compromise of 1850 signal the reemergence of normal coalitional politics of the past two decades that allowed some pro-southern measures to be passed?
... The willingness of sufficient Northerners to support the fugitive slave act thus provided Southerners with critical information about the future of national politics and hence about the future security of slavery in the nation.
 

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Some of the reasons suggest that the Southern States were victims of a breach of contract.
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0ahUKEwjAmrL1j5PKAhXJGz4KHdkVDZYQFggvMAI&url=http%3A%2F%2Fwww.civilwar.org%2Feducation%2Fhistory%2Fprimarysources%2Fdeclarationofcauses.html&usg=AFQjCNGCoJ0sFlPIFYnUg0TlejYcs-F6YA&sig2=2OjU_6euqkrqa3bvmOHn2A
The Declaration of Causes of Seceding States - Civil War Trust
South Carolina

We hold...that the mode of its [the federal government] formation subjects it to a third fundamental principle, namely: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.
Which sets up the succession theory of Compact where the Union was just a treaty between States that can be withdrawn from at will.

IMHO and one I will not defend is that the Southern Revolutionaries were in a rush to get out of the union and just picked up the theory of compact on the way to the exits just because they had to have some nice sounding political theory for propaganda purposes.

Using
Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff

Future posts will analyze this exit strategy.
 

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RE: Abraham Lincoln Shut Down Newspapers Bigly

NedBaldwin said:
Doesnt the theory require there to be a breach before withdrawal? Therefore it was not "at will', but rather only when and if the Compact had failed to function.

That is my reading of South Carolina's argument -- "the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation." To echo Reagan's famous remark about political parties, SC seems to me to be saying that it didnt leave the Union; the Union left it.
I hope to have a full discussion of this. The 'at will' option will be discussed. Everyone would like to resolve a dispute in their favor without a neutral judge.
 

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RE: Abraham Lincoln Shut Down Newspapers Bigly

NedBaldwin said:
I think that looking at the Supreme court and federal enforcement of FSL misses the point -- the party allegedly guilty of the breach was not federal branches of government, it was States. Cases like Dred Scott ended up in the Supreme court because there was resistance in the free states; look at what the State court of Wisconsin did in the Booth case. In Massachusetts the judge who remanded Anthony Burns to federal custody in accordance with the FSL was removed from office by the State.
The term of interest is comity.

Comity
Definition

The legal principle that political entities (such as states, nations, or courts from different jurisdictions) will mutually recognize each other’s legislative, executive, and judicial acts. The underlying notion is that different jurisdictions will reciprocate each other’s judgments out of deference, mutuality, and respect.

In Constitutional law, the Comity Clause refers to Article IV, § 2, Clause 2 of the U.S. Constitution (also known as the Privileges and Immunities Clause), which ensures that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

Comity between the States broke down over slavery, with the Northern States courts not recognizing slavery and the Southern States courts not recognizing freedom in an every increasing divide.

A good book on the decline in antebellum comity and an excellent sleep aid.
An Imperfect Union: Slavery, Federalism, and Comity
Jun 12, 2000 by Paul Finkelman

The allegation will be the Northern States effectively broke the Union.
 

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RE: Abraham Lincoln Shut Down Newspapers Bigly

Cyclopædia of political science, political economy, and of the political history of the United States Vol 3 edited by John Joseph Lalor, published in New York City 1881,1899
P 162
The fugitive slave law and the personal liberty laws together show plainly that the compromise of 1850 (see Compromises, V.) was far worse than labor lost, It gave the south a law to which it had no title ; even Rhett, in the South Carolina secession convention, declared that he had never considered the fugitive slave law constitutional. It thus provoked the passage of the personal liberty laws in the north. Each section, ignoring the other's complaints, exhausted its own patience in calling for a redress which neither was willing to accord first. It is not meant to be understood that secession would never have occurred without the aid of the fugitive slave law and its countervailing statutes; only that secession would have had to search much more diligently for an excuse without them.
IMHO amen.

Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff P 406

This discussion will briefly outline the legal arguments in favour of the secessionist position. The first section will survey four arguments that could, in theory, have been employed but which, in practice, were used either not at all or only marginally. The second section will survey, in greater detail, the principal argument which was advanced in 1860-61: that secession was a lawful remedy available to the Southern states in the face of material breaches of the Constitutional compact of 1787 by the free states. It will be observed that, in this argument, general considerations of natural law and of the law of nations played a central role.
I will start with the second section.

ibid
III. THE BREACH-OF-COMPACT THEORY AND ITS IMPLICATION
The legal argument that was actually deployed by the Southern leaders in 1860-61 may be characterized as the breach-of-compact theory. Its essence is simple. The federal Union, properly understood, was an ongoing contractual union between sovereign states—states which retained all aspects of their sovereignty after entry into the Union, save those that they had expressly delegated to the federal government. That original Constitutional contract—or compact—like any other contract, retained its legal validity only so long as the parties continued faithfully to adhere to it. Any breach of the compact by parties to it automatically entitled the innocent parties to withdraw from the arrangement.

There are some problems with this. There is no Constitutional textual support and SCTOUS decisions in support are also absent. This theory rested on a certain view of the general character of the Federal Union plus arguments from writings about general natural law. In short it is in the eye of the beholder.

The breach-of-compact argument for secession relied for its credibility on 4 key propositions.
*  Points of law:
*  The federal Union was as a compact between sovereign states, not a single national government
*  A material breach of the covenant/constitution allows the lawful remedy of rescission
*  Assertion that self judgment was needed to determine if the breach existed.
*  Points of fact
*  An actual violation of the Federal Compact by the Northern States.
Northern opposition to the FSL 1850 will be used as the actual violation.


Rescission legal definition of Rescission - Legal Dictionary
legal-dictionary.thefreedictionary.com/Rescission
Rescission
The abrogation of a contract, effective from its inception, thereby restoring the parties to the positions they would have occupied if no contract had ever been formed.
 

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RE: Abraham Lincoln Shut Down Newspapers Bigly

Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff P 413

A. The compact theory of the federal Union
A. The compact theory of the federal Union
The first and most basic, underlying component of the secessionist case was the thesis that the American federal Union was a Union of sovereign states rather than a single nation-state. This Union was, concededly, the creation of the “people” of the United States, but only in an indirect manner. The American people created the Union not by giving their approval as a single population of individual persons, but rather through the media of the various sovereign states into which they were then divided—and into which they continued to be divided for all purposes save those expressly transferred to the Union government.
In short "We the People of the United States" is not one people of the whole United States but we the people of the individual States. This was fought over during the antebellum period but the one people of the whole United States won out as the majority opinion.

ibid

The compact theory received its first systematic treatment at the hands of Calhoun.26 The federal government, in his words, was “the government of a community of States, and not the government of a
single State or nation.”
...
Calhoun insisted that sovereignty was, by its nature, single and indivisible and that sovereignty remained with the states."
In brief, the The Federal Union was not a sovereign entity but merely a means to fulfill a common purpose. The founders of the Confederacy took this view also. "We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government" The Confederacy existed only to serve as an efficient way for the constituent States to go about their business. A common armed forces was more efficient than 7. A common diplomatic core more efficient than 7 and so on. A treaty organization rather than a sovereign was the objective of the Southerns in the Confederate Constitutional convention.

There is circumstantial evidence of a view of compact theory existed in the writings of Madison and the Kentucky and Virginia Resolutions of 1798. Even the free states appear to have indulged in it when they attempted to nullify the various Fugitive Slave Laws. IMHO there was something there, but not much. However in the end the people of a number of geographic areas with the same boundaries as States were led by their political leaders to war on the assumption of a Compact Theory.
 

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RE: Abraham Lincoln Shut Down Newspapers Bigly

PatW said:
There is a problem with South Carolina's claim of a breach of contract. South Carolina lacked standing. In order to have standing the state or its citizens would have had to have lost escaped slaves to Free States that refused to enforce the FSL. The problem was that fugitive slaves generally only managed to escape into adjacent states. So the vast majority of fugitive slaves came from Maryland, Kentucky, and Missouri. An slave escaping from South Carolina would have to get through North Carolina, Virginia, and Maryland before getting to the Free State of Pennsylvania. It is doubtful that anyone accomplished this feat. Even if a handful made it, it seems to me that the remedy would have to have been proportionate to the injury. Secession hardly fits the bill. It was merely a pretext.
Could be assuming SCOTUS would hear a secession case. However would SCOTUS hear a political case at all is not a given. Post war Tesas v White suggest not.
Prewar Taney ruled in Luther v. Borden that the Supreme Court does not rule on Guarantee Clause cases . Secession appears to be such a case.
 

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ivanj05 said:
Given the lengths Taney went to in Dred Scott, I'd be willing to bet that he'd ignore what he said in Borden in order to hear a secession case if he had the opportunity.
I get that impression too. One day we need to look at the composition of the Taney Court in 60 before secession and figure out if it is doable. Maybe a hypothetical without Fort Sumter also.

In this thread we are going to reach a point where the secessionists assert they don't need SCOTUS.
 

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Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff P 415

B. The remedy of rescission for breach of compact under natural law This second crucial proposition—that the remedy of termination of the compact (i.e., of secession) was available in cases of breach of a compact—lay at the very core of the Southern case for lawful secession. It should be noted that this thesis is not logically entailed by the compact theory as such. It was logically possible to see the Union as a compact of states while holding at the same time that that Union was not terminable for any reason.37 The issue of terminability of the Union is therefore conceptually distinct from the question of the underlying
nature of the Union—a point that was clearly understood by all parties to the debates.
The issue over the terminability of the Union has sometimes been seen as a debate over whether or not the federal Union was, or was intended at its outset to be, a perpetual one.38 That is a misleading way
of putting it, because the word “perpetual” may be understood in either of two quite distinct senses. These could be termed the “strong” and the “weak” senses. Perpetual in the strong sense means that the Union is
indissoluble in any circumstance whatsoever—i.e., that, upon joining the federal Union, a state thereby alienated, irrevocably and in perpetuity, all right and power to withdraw from the Union. Perpetual in the weak sense means that the Union was perpetual in principle, or that it was intended at the outset to be perpetual—but that this aspiration of perpetuity could only be achieved in reality by the continued adherence of the parties to the original arrangements over time.
The US Federal Union is said to be perpetual, but if a State leaves it with the permission of the other States as per Texas v White can it said to be still perpetual? Yes it is. The US Federal Union is perpetual as long as the remaining States adhere to it. The Secessionists took it one step further claiming withdrawal as a lawful remedy for breach of the compact by the other States. The secessionist view was a weak form of perpetual. The alleged breach of compact allows a State to leave without permission.

J. P. Benjamin lays out the case for. The Constitution makes no provision for breaches by states.

Speech of Hon. J. P. Benjamin, of Louisiana, on the right of secession. Delivered in the Senate of the United States, Dec. 31, 1860

The argument is that the permanent Articles of Confederation were replaced by the Constitution suggesting that both are weak perpetual documents. The nature of the Constitution is a compact. The Constitution is perpetual only as long as States adhere to it. The Constitution has no way to resolve disputes between states. Therefore when a dispute arises the State must attempt to find justice outside of the Constitution.

The justice will be found in natural law discussed in the next section.
 

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CW Buff said:
I'd like to add my two cents, for whatever it worth. IMHO, compact theory, the doctrine of secession, and even the Kentucky and Virginia Resolutions were nothing but political gimmicks. These 'theories' were nothing more than the means for a political minority to complain about what a majority had decided. In Jefferson's and Madison's cases, at least I can identify with what may have actually been unconstitutional laws/acts.

Wikipedia has an interesting, well written article on compact theory, which indicates that SCOTUS rejected it three separate times well before the ACW: in 1793, 1816, and again in 1819 (don't forget the excerpts from the actual opinions in the Reference section). In addition, Judge Story rejected it in his Commentaries on the Constitution of the United States.

But perhaps most importantly, the Constitutional Convention rejected it.



The language you selected is exactly the same as that used during the Convention. On May 29 (the first day of deliberations, after a couple of days of preliminaries, rule making, etc.), Edmund Randolf presented the Virginia Plan, which began with a resolution to amend the AOCs (my cites are taken from Madison's notes, as presented by): First thing May 30, Gouverneur Morris moved that the Convention consider a set of three resolutions before proceeding any further (my bold highlights):Morris A motion was made to consider an alternate resolution that excluded the 'national, supreme' language, which failed, and the Convention adopted Morris’s resolution #3 by a vote of 6 to 1, with 1 divided (eight states present and voting at this stage). Seems pretty clear that they rejected the idea of creating another compact among the states, and chose instead to create a national government.

National government means a sovereign nation. The issue of sovereignty was explained in the the Convention sent to the Continental Congress, which was forwarded to the state legislatures and widely published together with the Constitution. It states: : And, The states gave up a share of their sovereignty to the US (a share defined by the powers conferred to the US Government as per the Constitution). By ratifying the Constitution individually, each state independently made the decision to surrender sovereignty, as only each individual state could do. Concurrently, the American people, in their sovereign capacity, instituted a national government defined by the Constitution (). The reason the states acted independently was because that was the only way they could surrender sovereignty, and had nothing to do with the actual act of adopting the Constitution. What consolidated the Union was national sovereignty, which was now the sole possession of the people of the US. The Union was in fact indivisible ('consolidated') once the Constitution was enacted, as much as any sovereign state or any sovereign nation ever was. Just like only the individual states could have decided to surrender any portion of their sovereignty, only the people of the US can decide to surrender any portion of their sovereignty, including that formerly held by a state. The decision by a state to adopt the Constitution is legally irrevocable and binding unless the sovereign people of the US say otherwise. There is no ongoing agreement; the agreement ended when the Constitution was enacted/adopted, and all that remained was a legally binding responsibility to comply with the Constitution.
The formula in the SCOTUS decision Texas v White is that the States or Congress decide who can leave the Union not the sovereign people of the US.

The Secessionists also saw the sovereign people of the US as existing in States not in the Nation at large. A good question is the term United States singular or plural. The constitution itself seems to suggest a plural. Treason against the United States, shall consist only in levying War against them. If it is plural how can it be a singular sovereign.

IMHO the answer is that the sovereignty of the United States grew over the antebellum period by laws and by SCOTUS decisions. However the final decision was made by winning the Civil War.
 

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NedBaldwin said:
Both. Its a collective noun: http://dictionary.reference.com/help/faq/language/g28.html

http://blog.oxforddictionaries.com/2011/09/agreement-over-collective-nouns/


Sovereignty resides in the collective. This did not grow or change from 1789 to 1860.
Was there unanimity in 1789 on this? Or was the Constitution one big compromise to keep the US from falling into disarray whose interpretation under stress mutated into a nationalist view point. Common enough story in the 19th century as loose groupings of little nations were gathered up into one (Germany , Italy). The evolution of the militia acts suggests that to me. The idea that State militia could be depended on to defend the US seems to be the desired ideal in 1789 but after the Whiskey Rebellion gets revised.
 

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CW Buff said:
Not so fast. Can we consider my prior post for a minute. You originally offered some ideas that are based on compact theory. I presented some points that refute the theory. What in my post do actually disagree with? That SCOTUS had rejected compact theory in favor of a sovereign nation three times before the ACW, the first of which was just 4 years after enactment. That Morris posed a crystal clear question before the Constitutional Convention, and they chose a national government over another compact among the states. That the Convention addressed the issue of sovereignty in the transmittal letter. Have I misinterpreted the historical evidence? I would not presume that’s impossible, but if I have, where exactly did I go wrong? If not, how do you support secession without compact theory?



Isn’t that a distinction without a difference. Congress represents the sovereign people of the US. And in certain cases, as proscribed by the Constitution, the state legislatures, acting collectively, represent the sovereign people of the US? Within your own statement, ‘the States’ is plural, and there lies the key. Also, it’s a representative system, not a direct democracy, so of course the people do not directly govern themselves, they do so via their elected representatives. The Constitution specifies proscribed roles for the people, Congress, and even the states, but in all three cases, they can only act collectively. It doesn’t matter that the Framers gave the states (collectively) a role in the process. In either case, Congress, or the legislatures of the collective states (or ratifying conventions of the collective states), the people represented are still ALL of the people of the US. The process does not allow for 11 out of 33 states to alter the Constitution or the Union. Are either the state legislatures (collectively) or Congress going to act against the wishes of the people of the US?



The secessionists saw what they saw because they were a shrinking minority desperately looking for an out from the agreed upon process: majority rule in accordance with the Constitution. Same for the minority Anti-federalists, lead by Jefferson and Madison, seeking a way to oppose the Alien and Sedition Acts in the 1790s, acts passed by the majority Federalists. Same for the Federalists in New England in 1815, seeking to oppose the War of 1812 and enbargoe, which was crushing commerce. Same for the nullifiers, lead by Calhoun, c1830, who opposed tariffs that they felt were crushing their economy. These are the groups you want to rely on, instead of three SCOTUS decisions, and some pretty clear language in the Constitutional Convention.



Whether 'the United States' refers to states plural or nation singular, the result is the same, ALL of the people of the US, acting collectively in accordance with the Constitution, via their representatives, who they elect. Those representatives may be Congress or, in certain limited cases, the legislatures or special conventions of all of the states. I will certainly agree the people’s conceptual picture of the US changed, from ‘the United States are’ to ‘the United States is’ (a la McPherson, I think). They did after all keep the same terminology: the Union. But a Union of the individual states was replaced by a more perfect Union of the collective states, because the former utterly failed to meet the needs of the country.



I respectfully disagree. Perhaps the line between state powers and national powers changed (it could not be precisely defined in 3 or 4 month, not even by 40 or so of the best political minds in the world. They basically created a grey area that required further definition, the details of such a complex and revolutionary system had to be worked out over time. Perhaps nationalism (the centralization of political authority) became increasingly prominent. But the US was a sovereign nation from the time the Constitution was enacted, a condition clearly pursued by the Constitutional Convention, and confirmed by SCOTUS in 1793, 1816, and 1819, and surmised by Story in 1833. What the ACW decided was that the Union was strong enough in the 1860s to resist a rebellion by 11 states.




Consider this, nation and state are, in general, interchangeable terms. The individual states had established their own individual national governments during the Revolution. Sovereignty resided in the individual people of each individual state. In 1789 they (the people of each state) decided to surrender their independent sovereignty to established a sovereign nation. They (the people of the collective states, aka the United States) then enacted a Constitution that established a national government that would govern them collectively. Doesn't matter if they (or you) thought of themselves as the people of a nation, or the people of the collective states. The country now had a national government too.
Be a great discussion for a different thread. Not here.
 

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Continuing on

Everybody seems to agree that there is no tangible evidence supporting the compact theory.
The Constitution Art 3
Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
Appears to give SCOTUS jurisdiction over State disputes.

However the Southerners thought otherwise and so we continue in analyzing their view.
IMHO their views had a healthy dose of special pleading and self interest.


Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff p416

The Southerners’ proposition that the federal Union of 1787-89 was perpetual only in the weak sense (i.e., was terminable in the event of breach) was, however, nowhere to be found in the Constitution, which
made no provision for breaches by states
. To be sure, there was the Supremacy Clause. But that spoke to a different problem: the possibility of a clash between a state law and a federal law. It shed no light whatever on how to resolve a clash between the states over a breach of terms of adherence to the federal Union itself. Authority for the existence of this remedy of rescission would therefore have to be found outside the framework of the Constitution.
A couple of points here. IMHO SCOTUS had authority to compel the Northern States to comply with the 1850 FLS and had already had by ruling unconstitutional many freedom laws. If there were continuing problems it appears to me that the existing legal framework would accommodate the Southern States needs.
 

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Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff p416
On this subject too, the views of Benjamin are particularly
instructive, as he addressed the question of the perpetual character of the
federal Union very explicitly. He candidly conceded that, in principle,
the federal Union was a perpetual one—though, crucially, in the weak
sense rather than the strong one. “[N]o man pretends,” insisted
Benjamin, “that the generation of to-day is not bound by the compacts of
the fathers.”
40
But he went on to contend that the real issue at hand was
not whether the Union had been envisaged as perpetual in the 1780s. It
had been. The issue was whether, since that time, that Union had been
irredeemably shattered by the failure of the Northern states to abide by
their commitments under the original Constitutional compact. The
compact remained binding, Benjamin maintained, only so long as all
parties continued to adhere to it.
41
That it would be wrong to regard the secession advocates as
enemies of perpetual unions per se is evident from no less authoritative a
source than the Confederate Constitution itself. That document did not
include a provision granting the states a right to secede at will. On the
contrary, it explicitly stated, in the Preamble, the intention of the
Southern states “to form a permanent federal government”
42

permanent, it is safe to conclude, in the weak rather than the strong
sense.
40. Benjamin, Right of Secession,supranote 3, at 104.
41.Ibid.
42.Constitution of the Confederate States of America, Mar. 3, 1861,
in COMMAGER, DOCUMENTS
. supra note 30, at 376.

No real Constitutional or legal support for Benjamin's opinion other than we are angry and want to get out.
 

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Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff p416

The Southerners’ proposition that the federal Union of 1787-89 was
perpetual only in the weak sense (i.e., was terminable in the event of
breach) was, however, nowhere to be found in the Constitution, which
made no provision for breaches by states. To be sure, there was the
Supremacy Clause. But that spoke to a different problem: the possibility
of a clash between a state law and a federal law. It shed no light
whatever on how to resolve a clash between the states over a breach of
terms of adherence to the federal Union itself. Authority for the
Speaks to the limits to the Supremacy clause and session. This is echoed in chapter 8 of American constitutional interpretation
Walter F. Murphy, James E. Fleming, Sotirios A. Barber
Foundation Press, Apr 18, 2008 The matter the Supremacy clause and States Rights was still being disputed in the Brown v Board era.
 

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ivanj05 said:
No, the Supremacy Clause does not address conflicts between two states, that is inargueably true. What is also true, however, is that there does exist an explicit Constitutional remedy for a dispute arising between the states. Article Three, Section Two directly and unequivocably assigns the Judicial Branch the power to resolve disputes between two or more states. If the secessionist arguement was that Northern states had somehow breeched the Constitutional compact with their defiance of the FSL, then there existed right then and there a Constitutional mechanism to arbitrate that issue, a mechanism that did not require Soutgern states to abrogate the Constitution in order to employ it.
DanF said:
The secessionists believed they couldn't prevail by legal means. That is why they resorted to the extra legal means of revolution.
SCOTUS had already forced the Northern States to accept the FSL 1850 See my comments on #22.



However the secessionists would claim that SCOTUS judgements were not being enforced.

Declaration of Causes-Georgia
A similar provision of the Constitution requires them to surrender fugitives from labor. This provision and the one last referred to were our main inducements for confederating with the Northern States. Without them it is historically true that we would have rejected the Constitution. In the fourth year of the Republic Congress passed a law to give full vigor and efficiency to this important provision. This act depended to a considerable degree upon the local magistrates in the several States for its efficiency. The non-slave-holding States generally repealed all laws intended to aid the execution of that act, and imposed penalties upon those citizens whose loyalty to the Constitution and their oaths might induce them to discharge their duty. Congress then passed the act of 1850, providing for the complete execution of this duty by Federal officers. This law, which their own bad faith rendered absolutely indispensible for the protection of constitutional rights, was instantly met with ferocious revilings and all conceivable modes of hostility.

The Supreme Court unanimously, and their own local courts with equal unanimity (with the single and temporary exception of the supreme court of Wisconsin), sustained its constitutionality in all of its provisions. Yet it stands to-day a dead letter for all practicable purposes in every non-slave-holding State in the Union. We have their convenants, we have their oaths to keep and observe it, but the unfortunate claimant, even accompanied by a Federal officer with the mandate of the highest judicial authority in his hands, is everywhere met with fraud, with force, and with legislative enactments to elude, to resist, and defeat him. Claimants are murdered with impunity; officers of the law are beaten by frantic mobs instigated by inflammatory appeals from persons holding the highest public employment in these States, and supported by legislation in conflict with the clearest provisions of the Constitution, and even the ordinary principles of humanity. In several of our confederate States a citizen cannot travel the highway with his servant who may voluntarily accompany him, without being declared by law a felon and being subjected to infamous punishments. It is difficult to perceive how we could suffer more by the hostility than by the fraternity of such brethren.
In addition with the election of Lincoln, the makeup of the SCOTUS could change meaning that SCOTUS offers no real protection.

Gov. Joseph Brown's Open Letter
As the
 

jgoodguy

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The South had a real beef with the North. A lot of the problem was future concerns not current ones. The FSL 1850 seems to be working. Political solutions were possible. The South took another route.

Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff p417

Authority for the
existence of this remedy of rescission would therefore have to be found outside the framework of the Constitution.
The justification for this remedy was duly found in natural law, which was an integral part of the mental universe of American lawyers in the early and mid-nineteenth century. It was one of the most
venerable intellectual ornaments of Western civilization, older than Christianity itself. Its basic thesis was that law, in its most fundamental guise, was a set of statements of principles of universal and permanent validity. Its strictures prevailed in all countries and all civilizations and in all times. It was painfully obvious that its tenets were all too frequently violated in practice, but these violations, however frequent, could have no effect on the essential validity of this body of law.
Unwritten law, yet part of the legal universe of the 1860s and frequently abused by those who used it in a self serving manner.

Natural-law thought is therefore in sharp contrast with schools of legal philosophy (most notably the positivist one) which holds law to comprise the expression of the will of a given sovereign, expressed in the form of commands issued to a subject population, and with the prospect of punishment for disobedience of those commands. 43 There were various different theories as to how the contents of natural law were to be discovered. But the one that was most prominent in the eighteenth and nineteenth centuries held natural law to be discoverable through the exercise of human reason.
There is written laws of the sovereign, but if one disagreed with it perhaps one can appeal to natural law.

LEGAL POSITIVISM vs. NATURAL LAW THEORY
There are two “natural law” theories about two different things: i) a natural law theory of morality, or what’s right and wrong, and ii) a natural law theory of positive law, or what’s legal and illegal. The two theories are independent of each other: it’s perfectly consistent to accept one but reject the other. Legal positivism claims that ii) is false. Legal positivism and the natural law theory of positive law are rival views about what is law and what is its relation to justice/morality.
Thomas Hobbes argues that the law receives its legitimacy from a social contract between the people who are governed and their sovereign. He likens government to a biblical sea monster.Like an anatomical head, the sovereign rules over the body of subjects whose power is beneath it. Like the monster, the government is all-powerful. Yet unlike Austin, he believes there to be limits to political obligation.
 
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