# Secession



## Salvatore123 (Jan 11, 2009)

I would be interested to hear other's views on whether a state in the US can legally secede from the Union.

I can tell you ahead of time to NOT look in the Constitution - you won't find it there.

We have laws that govern whether a territory can BECOME a state (this occurs relatively often with Puerto Rico, and I believe Guam may have considered it before), but no set laws governing secession.

Now, before you think about mentioning the US Civil War, that War did NOT answer the question of whether it was legal for a state to secede from the Union. That War simply proved that whoever had the greater army would ultimately decide on whether secession would be allowed. If the South would have won (it was really doomed from the start, primarily because of economics - the South had, without question, some of the greatest military commanders in the history of warfare), we would not have a United States as we do today.

So my question is this: do you believe a state can legally secede from the Union (considering it had a right to JOIN or NOT JOIN the Union), and if not, what is the basis for your position that it cannot?

I look forward to responses.


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## Dhaller (Jan 20, 2008)

No.

The Supreme Court ruled in Texas vs. White (1869) that the Constitution does not permit states to secede. The decision also nullified ordinances of secession and acts of legislature in states which permitted secession.

I actually think, addressing the notion of "if the South had won", the United States itself would have become as strong as the US is now - the South has never really been "necessary" to the success of the US, lacking as it is in wealth, industrial power, intellectual capital and even agricultural significance (the plains states being the breadbasket) - while the Confederate States would be of the level of Central America (sort of an English-speaking Mexico).

We'd probably have people complaining about Confederate illegal immigrants 

DH


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## Country Irish (Nov 10, 2005)

From my perspective it does not matter about the legality now. From what I see, the goal is to undermine the power of the Federal government so that the states receive benefit of a union but are free to ignore the obligations. It is not only the economic distress of Federal government they are counting on but also a variety of other means to simply bypass federal authority. For example state compacts without federal oversight are currently popular for the state governments but not so good for the citizens. The feds just seem to ignore such things. The feds also ignore transgressions by claiming that state rights overrule federal intervention. It is just a way to do nothing by only reading parts of the law and constitution and ignoring quite a bit of case law. However by not exercising authority they slowly lose it.

Thus there is no real way to secede and no real need to try. The goal is to simply undermine the union to the point that it is irrelevant.


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## MarkfromMD (Nov 5, 2008)

Ah, I don't have time right now to look into this right now but I believe it hinges on whether the States or the People entered into the Union.



> We the People of the United States...do ordain and establish this Constitution for the United States of America.


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## Orsini (Apr 24, 2007)

They already tried this. It didn't work out.


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## Salvatore123 (Jan 11, 2009)

*Constitution*

Dhaller:

Actually, the White decision, although stating that no state actually seceded from the Union prior to the Civil War, went on to talk about states being unable to UNILATERALLY secede from the Union (which was superfluous if secession could not occur under any circumstances).

In addition, I do not believe the "finding" regarding secession could be characterized as a definitive holding, as secession was not the issue before the court. I think an excellent argument can be made that the secession portion of the decision was dicta.

I believe that if other states (how many is the question) voted in favor of allowing a particular state to secede, that state could do so.

Country Irish:

You raise an excellent point. Whenever secession is discussed, the strongest argument against allowing a state to do so is its MONETARY obligations with the federal government. Essentially, states enter into a "pact" with the feds almost from the moment they become states.

Mark:

The language you cite was written only for the 13 states. Obviously, it could not have been written for more than those 13, as there were no other states.

If one looks at history, MANY territories have sought entrance into the Union, and were actually turned down: State of Lincoln, State of Muskogee, State of Jefferson, State of Superior, et al.

Orsini:

You made your point, well, quite "pointedly". Yes, it was tried. But as I mentioned, what if the South had won? The South was forced to come back to the Union ONLY by military might. I don't think that should be the basis for becoming part of, or remaining part of, the Union.

And no, I am not some nut-job who thinks any state should seriously consider seceding from the Union right now. I brought up the question only because Texas is one of the few (if not the only) states whose admittance was somewhat "conditional". Texas has maintained since its admittance into the Union that it has the right to secede, and some people even today ponder on what basis (it cannot be the US Constitution, as the Constitution is silent on secession) Texas could be prevented from doing so (aside, again, from military might, and assuming it paid all obligations owed to the federal government).

Logically, if a territory can vote to become part of the Union, why can't it vote to leave the Union? I don't think this is an unreasonable question.


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## AlanC (Oct 28, 2003)

It is legal, but don't try it or they'll kill you.


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## Salvatore123 (Jan 11, 2009)

*Oath*

Alan,

For some reason, your post made me think of this (and I don't know why):

Does anyone else find this odd:

When foreigners want to become citizens of the US, they MUST take the following oath:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

Yet, if you are simply born in the US or a US territory (such as the Panama Canal Zone, when we owned it, Guam, US Virgin Islands, etc.), you do NOT have to take such an oath?

I mean, really - think about what the above oath requires someone to say.

This, in a way, gets back to the secession argument, and reminds me of the famous scene in the movie The Outlaw Josey Wales. The oath recited by the Southerners surrendering was historically accurate.

So what "binds" those of us born in the US to adhere to the dictates set forth in the oath above, if we never swore to do so?

Again - I am NOT saying we should not adhere to what the oath states, NOR am I advocating secession by anyone.

I just started a topic that interested me and was curious to find out what others had to say on the matter.

Regards,

Sam


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## PedanticTurkey (Jan 26, 2008)

If I recall, Lincoln's famous response after hearing an argument suggesting seccession was legal was "Don't quote laws to me, I've got guns."

And, yes, I realize he didn't say this. It's a joke.


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## Salvatore123 (Jan 11, 2009)

*Lincoln*

Ped,

I realize what you said was a joke, but consider the following, which was NOT a joke:

Shortly after declaring martial law in 1961, Lincoln suspended the constitutional right to writs of habeas corpus in 1861. Shortly thereafter, Union troops arrested a Maryland secessionists named John Merryman. Merryman applied for a writ of habeas corpus and U.S. Chief Justice Roger Taney granted the application and ordered that the U.S. military bring Merryman before the U.S. Supreme Court for hearing on Merryman's arrest. Lincoln and the military refused the writ, and Taney responded, in the case of _Ex Parte Merryman_, declaring Lincoln's suspension of habeas corpus unconstitutional. Again, Lincoln and the military ignored Taney's ruling.

This is an excellent example of how one can come full circle to the original point. Regardless of whether secession is or is not legal, when one is the commander in chief and has the full support of the military (and, I think, the president would need a pretty subtantial majority of support of Congress), it does not matter what ANYONE says - even if it is a co-equal branch of government. The one with the guns makes the rules.

I am generally not an alarmist. But what I see happening with the US government right now, especially with the manner in which healthcare is being handled (and please let's not discuss the merits of Obama's healthcare plan - that is not the point I am trying to make), is very frightening.

If Obama (or Bush, or any other president) REALLY wants something passed, regardless of scientifically verifiably accurate polling to the contrary, and the Constitution does not specifically prohibit the process being used to pass the law at issue, there is nothing anyone can do to stop him.

Although I don't see this happening (and I pray that it does not), what do you think would result if Obama's plan was passed on a strict party-line vote, was struck down in its entirety by the US Supreme Court, and Obama and Congress (pre-2010 mid-term election) nevertheless implemented the plan? Other than "revolution", who or what could stop them?

This is not some pie-in-the-sky law school hypothet. I seriously ask: who or what could stop them?


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## Phinn (Apr 18, 2006)

AlanC said:


> It is legal, but don't try it or they'll kill you.


You left out the part where they also burn towns, shut down dissident newspapers, confiscate property without due process, have supreme court justices arrested, have opposition party members deported, starve civilians, and rule whoever is left under a military dictatorship.


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## WouldaShoulda (Aug 5, 2009)

Salvatore123 said:


> Ped,
> 
> I realize what you said was a joke, but consider the following, which was NOT a joke:
> 
> Shortly after declaring martial law in 1961, Lincoln suspended the constitutional right to writs of habeas corpus in 1861. Shortly thereafter, Union troops arrested a Maryland secessionists named John Merryman. Merryman applied for a writ of habeas corpus and U.S. Chief Justice Roger Taney granted the application and ordered that the U.S. military bring Merryman before the U.S. Supreme Court for hearing on Merryman's arrest. Lincoln and the military refused the writ, and Taney responded, in the case of _Ex Parte Merryman_, declaring Lincoln's suspension of habeas corpus unconstitutional. Again, Lincoln and the military ignored Taney's ruling.


To which Lincoln replied, "Writ?? I got yet writ, RIGHT HERE!!"


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## Relayer (Nov 9, 2005)

Dhaller said:


> No.
> 
> The Supreme Court ruled in Texas vs. White (1869) that the Constitution does not permit states to secede. The decision also nullified ordinances of secession and acts of legislature in states which permitted secession.
> 
> ...


That decision was rendered 140 years ago, almost immediately after the civil war. I think it would be very interesting to see this case (or similar) argued again in front of the Supreme Court. Different outcome, maybe?


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## JAGMAJ (Feb 10, 2005)

Personally, I believe that the states have the legal right to secede. The states were (and still are) considered to be separate sovereign entities and they chose to voluntarily enter into a compact with the other states. Saying that states can't secede would be like saying that the United States could not withdraw from the United Nations. That being said, military might makes right, so it is unlikely that any state could actually manage secession. As for the power of the President to ignore the Supreme Court, look at Andrew Jackson and the Cherokee. Unless either the military or a majority of the people strongly oppose presidential action, there's really nothing preventing a president from ignoring the Supreme Court.


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## DavidLeoThomas (Jan 18, 2010)

A State unambiguously *can* secede in the following manner:

1) Get a constitutional amendment passed, providing a mechanism for secession.

2) Make use of that mechanism.

Whether other methods are legal/possible/practical, I leave to others.


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## Liberty Ship (Jan 26, 2006)

AlanC said:


> It is legal, but don't try it or they'll kill you.


This. LOL.

Secession is like "Number Six" trying to leave the Village in "The Prisoner." You only think you are free.

What we need to do is explore the option of EXPELLING certain states from the Union. That, at least, has not been decided by a war. And it's hard to imagine California, or Hawaii, or New York City actually mounting a military action to stay in the Union.


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## NoVaguy (Oct 15, 2004)

Salvatore123 said:


> I would be interested to hear other's views on whether a state in the US can legally secede from the Union.
> 
> I can tell you ahead of time to NOT look in the Constitution - you won't find it there.
> 
> ...


Justice Scalia says no, and specifically cited the U.S. Civil War for that proposition.

see https://www.newyorkpersonalinjuryattorneyblog.com/2010/02/scalia-there-is-no-right-to-secede.html



Justice Scalia said:


> I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.
> 
> I am sure that poetic license can overcome all that -- but you do not need legal advice for that. Good luck with your screenplay.


I personally find this to be a boring question, but I found it interesting that Scalia actually answered it.


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## Salvatore123 (Jan 11, 2009)

*Nova - re-read what Scalia actually said*

Scalia, although in a round-about way, is basically saying exactly what I said in the original post, and what JAG alluded to as well:

"If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."

A *COURT* did not resolve the right to secede - a *WAR* resolved the right to secede. Lincoln, backed by the full might of the Union Army, "held" that the Southern states did not have the right to secede. No court so held.

I realize this is just a mental exercise, but if you look at the history of Texas, that state has maintained since it joined the Union that it retained the right to secede because of the way it entered the Union.


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## JDC (Dec 2, 2006)

Those wacky Texans. :icon_smile_big:

I think it's self-evident that not many Americans today have a sense of patriotism for their states. Forget the legalities of it.  Practically, the fact is, the era of "each-state-as-autonomous-entity" was over a very long time ago, and the rise of our current national 2-party oligarchy has obliterated all substantial differences among politicians. A Republican in one state is required to adhere (again, practically not legally) to the same "score card" agenda as Republicans in all other states, and the same is nearly as true for Democrats.

Secession of a state such as California, that is a net provider to the federal government and has an established balance of industry (agriculture, manufacturing etc) would be quite feasable. But most "red" states are net recipients from the feds, and/or lack infrastructure in one or more critical business areas, and secession for these states would be difficult.

At this point our federal government has become so obscenely bloated, with no prospect of course reversal from "either" party, the only eventual outcome is bankruptcy and failure. Short of that, the options are only slightly less painful, e.g. an amendment to our federal Constitution which would prohibit (finally) unfunded mandates by the feds to the states.


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## CuffDaddy (Feb 26, 2009)

FWIW, I think it's fairly clear that the Confederacy had the better legal (and worse moral) argument heading into the Civil War. But, as J. Scalia notes, the Civil War rather decisively ended the debate. IMO, the Civil War is one of a handful of unwritten amendments to the Constitution.


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## Beresford (Mar 30, 2006)

Funny you should raise this. There is legislation pending in Congress right now, being pushed by the Democrats, that authorizes establishment of a new separate government in Hawaii based on racial lines, giving that government sovereignty from the State. One of Hawaii's Senators has already admitted that this could be a precursor for Hawaii leaving the Union.

Here's a couple of articles on the legislation:

Congress Tries to Break Hawaii in Two 
https://online.wsj.com/article/SB10...80795586118.html?mod=rss_Today's_Most_Popular

A Hawaiian Punch to the Constitution

Hawai'i Wants Two Different Governments

Hawaiians deserve to vote, not just Congress
https://dailycaller.com/2010/02/23/hawaiians-deserve-to-vote-not-congress/

The majority of the people in Hawaii are opposed to this, and Congress has very carefully made sure that no hearings are actually held in Hawaii on this legislation.

Needless to say, it violates a host of things, including the terms of Hawaii's admission as a State, the Equal Footing Doctrine, and the Fifth and Fourteenth Amendments, just for a start, but Democrats think they are creating a permanent racial constituency group so they don't care.


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## Beresford (Mar 30, 2006)

Salvatore123 said:


> Scalia, although in a round-about way, is basically saying exactly what I said in the original post, and what JAG alluded to as well:
> 
> "If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."
> 
> ...


As a young lawyer, I personally witnessed something very similar. Hawaii had passed a law under which the State would take land from landlords and transfer it to the tenants pursuant to the power of eminent domain. The law was challenged, and the Ninth Circuit Court of Appeals found the law unconstitutional (a decision later reversed by the U.S. Supreme Court).

I was an associate for one of the law firms that challenged the law. The Ninth Circuit panel held a hearing about enforcement of its decision. The courtroom was standing room only. During oral argument the Attorney General for the State of Hawaii argued that the State was not bound to follow a federal court order.

Judge Poole, who was a very distinguished-looking black judge, leaned over the bench into his microphone and said, very quietly, "Mr. Lilly, I believe we fought a war which settled that question."

You could hear a pin drop in that courtroom.


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## JDC (Dec 2, 2006)

Talk of Hawaiian independence has been going on for nearly as long as it has existed as an American state. It's the only state that was founded by deliberate overthrow of a sovereign government, so technically it's not secession, it's restoration:

https://www.hawaii-nation.org/struggle.html

Polls routinely show a 3 to 1 majority of Hawaiians in favor of leaving the US, even though they know it'll mean economic hardship (if not ruin).


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## Beresford (Mar 30, 2006)

Salvatore123 said:


> Dhaller:
> 
> And no, I am not some nut-job who thinks any state should seriously consider seceding from the Union right now. I brought up the question only because Texas is one of the few (if not the only) states whose admittance was somewhat "conditional". Texas has maintained since its admittance into the Union that it has the right to secede, and some people even today ponder on what basis (it cannot be the US Constitution, as the Constitution is silent on secession) Texas could be prevented from doing so (aside, again, from military might, and assuming it paid all obligations owed to the federal government).
> 
> Logically, if a territory can vote to become part of the Union, why can't it vote to leave the Union? I don't think this is an unreasonable question.


I have read, but don't know for a fact, that this is supposedly an urban legend, and that what Texas reserved at the time of its admission was the right to create a certain number of multiple states (5?) out of its territory. Again, I don't know that for a fact, but that relates to the fact that there are a whole host of arguments that somehow Texas wasn't properly admitted to the Union, so could leave if it wanted.

These arguments always get raised by Hawaii secessionists, who for example claim that Hawaii was illegally annexed because it became part of the U.S. by a joint resolution, not a treaty (Texas was also admitted by joint resolution), and further claim the plebiscite by which Hawaii residents overwhelmingly voted for Statehood was fatally flawed because it did not give the option to become independent, only whether to become a state or remain a territory.


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## Beresford (Mar 30, 2006)

FrankDC said:


> Talk of Hawaiian independence has been going on for nearly as long as it has existed as an American state. It's the only state that was founded by deliberate overthrow of a sovereign government, so technically it's not secession, it's restoration:
> 
> https://www.hawaii-nation.org/struggle.html
> 
> Polls routinely show a 3 to 1 majority of Hawaiians in favor of leaving the US, even though they know it'll mean economic hardship (if not ruin).


Well, as a Hawaii resident and Native Hawaiian I could get in an argument with you and tell you your facts are entirely wrong, but I'll just leave it there.


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## JDC (Dec 2, 2006)

Please do tell.

Which facts in my reference are incorrect, and why are they incorrect?

#1:

"That apology - issued by Congress on Nov. 23, 1993, and signed by President Clinton - admits that "the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people, or over their national lands, to the United States," and that "the economic and social changes in Hawaii over the 19th and early 20th centuries have been devastating to the population and to the health and well-being of the Hawaiian people."

The apology could prove to be Hawaii's ticket to nationhood. "

#2:

"By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the government of a feeble but friendly and confiding people has been overthrown. A substantial wrong has thus been done, which a due regard for our national character, as well as the rights of the injured people, requires we should endeavor to repair." -- Grover Cleveland:

https://www.hawaii-nation.org/cleveland.html
Cleveland refused to approve the annexation of Hawaii. Soon, however, he was out of office, and President William McKinley gave it his blessing.


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## Earl of Ormonde (Sep 5, 2008)

Liberty Ship said:


> This. LOL.
> 
> Secession is like "Number Six" trying to leave the Village in "The Prisoner." You only think you are free.


Prisoner: "Who is number one?"
Keeper: "I am number two"
Prisoner: "Who is number one?"
Keeper: "You are number six"

:icon_smile_big:


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## Phinn (Apr 18, 2006)

FrankDC said:


> [Hawaii is] the only state that was founded by deliberate overthrow of a sovereign government ...


Other than the first 13?


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## Beresford (Mar 30, 2006)

Earl of Ormonde said:


> Prisoner: "Who is number one?"
> Keeper: "I am number two"
> Prisoner: "Who is number one?"
> Keeper: "You are number six"
> ...


"I am not a number, I am a free man."


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## Salvatore123 (Jan 11, 2009)

*Frank ?????*

Quote:_[Hawaii is] the only state that was founded by deliberate overthrow of a sovereign government ..._

Originally Posted by *FrankDC* https://askandyaboutclothes.com/community/showthread.php?p=1070130#post1070130 
_[Hawaii is] the only state that was founded by deliberate overthrow of a sovereign government ..._

I think a good many Mexicans would disagree with respect to Texas, New Mexico, and California . . .


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## Earl of Ormonde (Sep 5, 2008)

Beresford said:


> "I am not a number, I am a free man."


:icon_smile_big:

Ah, those were the days...when TV was not only a bit scary and claustrophobic....it was also quite incomprehensible....:icon_smile_big:

That is, of course, in the days when TV prodcuers credited viewers with a modicum of intelligence to work things out for themselves.


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## JDC (Dec 2, 2006)

Salvatore123 said:


> Quote:_[Hawaii is] the only state that was founded by deliberate overthrow of a sovereign government ..._
> 
> Originally Posted by *FrankDC* https://askandyaboutclothes.com/community/showthread.php?p=1070130#post1070130
> _[Hawaii is] the only state that was founded by deliberate overthrow of a sovereign government ..._
> ...


All of those states were founded in territories formally ceded to the U.S. under the Treaty of Guadalupe Hidalgo and/or the Gadsden Purchase.

As for the original 13, the exact same thing is true. Read the treaties of Paris and Versailles.

No such land cession treaty exists or ever existed with the previous (many say rightful) government of Hawaii.


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## Beresford (Mar 30, 2006)

Earl of Ormonde said:


> :icon_smile_big:
> 
> Ah, those were the days...when TV was not only a bit scary and claustrophobic....it was also quite incomprehensible....:icon_smile_big:
> 
> That is, of course, in the days when TV prodcuers credited viewers with a modicum of intelligence to work things out for themselves.


Like wondering whether Number Six WAS Number One?

Prisoner: "Who is number one?"
Keeper: "I am number two"
Prisoner: "Who is number one?"
Keeper: "YOU ARE, number six"

:icon_smile:


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## Salvatore123 (Jan 11, 2009)

*Frank,*

with due respect,

What in the hell was the Battle of the Alamo fought for?

At that time, Santa Anna was the undisputed "ruler" of Mexico by virtue of being head of Mexico's army. I do not believe one historian questions the fact that Santa Anna fought the Battle because he believed that Texas (or at least part of where the Alamo was positioned) was owned by Mexico.

I also do not believe that one historian disputes the fact that Sam Houston believed that the territory containing and surrounding the Alamo was PART of Texas and FREE from Mexico.


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## Earl of Ormonde (Sep 5, 2008)

Beresford said:


> Like wondering whether Number Six WAS Number One?
> 
> Prisoner: "Who is number one?"
> Keeper: "I am number two"
> ...


Blimey...you're right .....I've never thought of that...now I feel really dense!


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## Beresford (Mar 30, 2006)

Earl of Ormonde said:


> Blimey...you're right .....I've never thought of that...now I feel really dense!


Be seeing you!

:icon_smile_big:






"They've given you a number, and taken 'way your name."


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