Some propose that the War Between the States and the victory of the North over the Southern States sets a precedent in this nation for the proposition that secession is not a viable course of action by the sovereign States in this confederacy. I have, in the past, compared this claim to a claim that I have the right to bloody your nose every week just because I have done it in the past. Can war establish a legal precedent? I still think not. War may be called upon to enforce a legal right based on precedent, as was the American War of Independence. But perhaps it is worth a reconsideration of the notion that war cannot establish precedent.
If the War Between the States establishes a precedent, we can also postulate that the English Civil War established precedent. The English Civil War ultimately has stronger historical evidence of precedence than does the American War Between the States. These events occurred approximately 100 years prior to the Declaration of Independence and would have been central in the thoughts of the Founding Fathers. They learned from the historical events of the English Civil War and patterned their conduct after it.
The English Civil War arose out of Parliament’s dispute with King Charles I over the scope of his authority. Parliament created what was known as the New Model Army. The New Model Army served Parliament under the leadership of Oliver Cromwell against the royal forces of King Charles I. The New Model Army, after three major battles during the period of 1642 through 1645, routed the royal forces, bringing King Charles I to trial for tyranny and ultimately execution on January 30, 1649. Thereafter, Parliament installed Oliver Cromwell as the Lord Protector of the Commonwealth of England in 1653. If the American War Between the States establishes precedent that the sovereign states are unalterably united, the English Civil War establishes the precedent that the elected representatives of the people have the authority in and of themselves to undertake military action against the chief executive.
Ultimately, the Cromwell line was unable to maintain its authority as Lord Protector of the Commonwealth, and, in 1660, Parliament accepted King Charles II as the successor to King Charles I. Unfortunately, no stable settlement proved possible until the Glorious Revolution of 1688, when Parliament asserted the right to choose whomsoever it pleased as monarch. The Parliament ultimately offered the crown to William and Mary of Orange. And as part of its investiture of William and Mary, Parliament passed the “Bill of Rights” on February 13 of that same year.
A careful reading of the English Bill of Rights shows striking parallels between it and the united States’ Declaration of Independence and ultimately the U.S. Constitution Bill of Rights. A few examples should suffice:
- That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
- That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
- That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;
- That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;
- That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
- That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;
Ultimately the Declaration of Independence was patterned after the English Bill of Rights. The Continental Congress, a legislative body, acted to constitute an army to defend the thirteen united States, and they prosecuted that war to victory against King George III. Jefferson’s—and, for that matter, all of the Founding Fathers’—sentiments on resistance to the king are clear. “Every generation needs a new revolution.” “The spirit of resistance to government is so valuable on certain occasions that I wish it to be always kept alive.” Not only were the events in history precedent for what when on in history, they were embodied in the thoughts and written documents that formed the nation. Maybe it is appropriate to consider historical precedent. But if the English Civil War is the context for the War of Independence and the War Between the States, we must rethink the precedent in the entire context. Our American War Between the States found its identity in the ideals of liberty in the English Civil War and in our founding principles. Secession is still viable in this context.