This issue is never far from our political thoughts here at TPOL.

Tom Woods recently wrote on this. We’ve freely cribbed from his commentary, presented here.

Tom responded to a “left-wing” (Regressive masquerading as a Progressive) contributor to National Review. The guy was writing about a subject that supposedly has been settled forever, the War between the States (1861-1865). As Tom notes, this guy’s views are of course be indistinguishable from Hillary Clinton’s.

So the guy recently wrote, “There is no question the South was a bunch of traitors. It’s by the very definition of the word ‘traitor.'”

As Tom notes, this conventional view is the one you learned in seventh grade (or earlier), and millions of children continue to learn today.

(We point out that an ancestor of most of us at TPOL was a historian and history teacher. He was Texan by birth and raising, but was a Unionist. (Many Texans were even back in the 1860s.) But in his years of teaching, he never, ever taught this, even when the textbooks he was required to use (he taught mostly in Northern schools) claimed this was so.)

A friend and instructor in Tom’s Liberty Classroom (no, Tom didn’t pay TPOL for the plug!), responded to this yahoo:

1. Lincoln never used the word ‘traitor” in his correspondence — public or private — even when pressed to do so.

2. Grant did use that term during the War but rebuffed Andrew Johnson after the War when Johnson forcefully wanted Southerners treated and labeled as such. He even threatened to resign his commission if Johnson pressed the issue.

3. The fact that there were no convictions had nothing to do with either Lincoln or Grant. Many Northerners, even committed abolitionists, waffled on the issue after the War and thought it was still an unsettled legal issue.

4. But, Southerners did not commit treason by definition. We know this because two Southerners were literally tried in court for treason. Henry Kyd Douglas was found not guilty, and Robert Ould was acquitted by a military commission. That means that according to U.S. common law, secession was not treason. Ould later was part of Jefferson Davis’s legal team when Davis was potentially facing trial for treason.

Tom is careful to that Robert E. Lee learned at West Point, in William Rawle’s textbook, that secession was a constitutional option for the states, and certainly not “treason.” (Our TPOL ancestor was also a student of West Point (US Military Academy) history and had a copy of  A View of the Constitution of the United States of America (first published in 1825). Notice this textbook was officially endorsed and used by the United States Army!)

As Tom says, Secession cannot be “treason” if the compact theory of the Union is true, and it obviously is. His explanation is also worth sharing with our readers.

The compact theory was spelled out in the earliest years of the republic by figures like Thomas Jefferson, St. George Tucker, and John Taylor of Caroline (of Virginia). (We do not see the systematic exposition of any other way of thinking about the nature of the federal Union for at least several decades.)

According to this way of thinking, the Union was created not by “the American people” as an indivisible blob, but by the distinct ratifying conventions in the various states. Thus the peoples of the pre-existing states delegated powers to the federal government. We did not get a federal government and then the states, any more than we first have a marriage and then get a bride and groom.

According to the influential international lawyer Emmerich de Vettel, in his 1758 book The Law of Nations, a sovereign body delegating its powers to a confederation does not lose its sovereignty in so doing. It can thus reclaim it (via secession) if and when it so chooses.

Tom is absolutely right when he ends with “That ain’t ‘treason,’. It is not even betrayal of an oath or affirmation of officers and enlisted men in the United States Army and Navy. Or of those who served in Congress or in the Executive Branch, and left with their States. Their loyalty to the US Constitution was the result of their loyalty to their own States, which had created the confederation and then the federal union.

Indeed, there is a strong case for arguing that the term traitor could more correctly be applied to those from Virginia, Texas, and other States who did not resign and fight for their own State and therefore, the Confederate States of America.

Why? Because their oath was to the Constitution, and what Lincoln and the Radical Republicans who dominated Congress did was clearly unconstitutional.

“You shall know the truth, and the truth shall set you free.”

We also share from John Taylor of Caroline and William Rawle:

In the creation of the federal government, the states exercised the
highest act of sovereignty, and they may, if they please, repeat the
proof of their sovereignty, by its annihilation. But the union possesses
no innate sovereignty, like the states; it was not self-constituted; it
is conventional, and of course subordinate to the sovereignties by
which it was formed. (John Taylor of Caroline)

If the means to which the government of the union may resort for executing the power confided to it, are unlimited, it may easily select such as will impair or destroy the powers confided to the state governments. (John Taylor of Caroline)

It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed. This right must be considered as an ingredient in the original composition of the general government, which, though not expressed, was mutually understood. . . (William Rawle)