Posted on 12/24/2001 4:25:26 AM PST by WhiskeyPapa
Thank you, and Merry Christmas to you, sir. Most of the time I don't bother reading the essays posted here after skimming the first few paragraphs and getting the gist of it. I usually scroll down to the replies and look and individuals' responses and take it from there, so my replies don't necessarily mean I agree/disagree with the essay.
One funny thing I noticed is the spelling/grammar. It shows the true weakness of SpellCheck in the sense that the words are spelled correctly but are not the correct usage. That tends to play into the stereotype of the education system in the South.
We know that Washington is strongly on the record favoring a strong national union. Likewise is Madison. Can you name another Virginian--a delegate at the Constitutional Convention would be nice--who opined in the record as you suggest?
Walt
Davis and the rest were never brought to trial because the Fourteenth Amendment was adopted and Chief Justice Chase viewed it as a violation of their Constitutional rights against being punished twice for the same crime. Think about it for a moment. Are you so naive as to believe that had the Northern government proceeded with a trial of Davis and the rest that they would have allowed for the possibility of an acquittal? You think packing a jury is a recent development?
Lee, Davis, and all other graduates of the U.S. Military Academy at West Point, were taught in their Constitutional Law courses that secession was a legal right of the states.
Let me quote from Rawle's book, "A View of the Constitution of the United States of America. This is from Chaper 32, Of the Permenance of the Union:
"The secession of a state from the Union depends on the will of the people of such state. The people alone as we have already seen, bold the power to alter their constitution. The Constitution of the United States is to a certain extent, incorporated into the constitutions or the several states by the act of the people. The state legislatures have only to perform certain organical operations in respect to it. To withdraw from the Union comes not within the general scope of their delegated authority. There must be an express provision to that effect inserted in the state constitutions. This is not at present the case with any of them, and it would perhaps be impolitic to confide it to them. A matter so momentous, ought not to be entrusted to those who would have it in their power to exercise it lightly and precipitately upon sudden dissatisfaction, or causeless jealousy, perhaps against the interests and the wishes of a majority of their constituents."
Given that the provision that Rawle spoke of was still not a part of any of the state constitutions of the seceeding states and that none of the original seven confederate states put the matter of secession to a popular referendum, then how can you hold Rawle's book as justification for their actions? That would be like breaking all ten commandments and then using the Bible to justify your actions, wouldn't it?
Why weren't the legislators of the New England states accused of treason after the Hartford Convention?
Because the Hartford Convention never voted secession and none of the states entered into rebellion, that's why.
Well, that's a dodge, isn't it?
Lee definitely levied war on the United States. That is treason.
From a newsgroup; not written by me. Consider:
"The issue about trying Jefferson Davis, Alexander Stephens and other political leaders of the Confederacy for treason was a complex one.
There were two reasons for not doing trying them: first was the feeling that a trial, if successful, would have created a martyr. In 1865, Jefferson Davis' trial would probably been applauded by most Confederates! But the exaggerated rumors of his mistreatment by Nelson Miles while Davis was held at Fortress Monroe changed the image of Davis among white Southerners from a hated incompetent to a martyr to the Lost Cause.
Carl Schurz commented on this in a speech in the Senate:
"There is not a single example of such magnanimity in the history of the world," declared Carl, "and it may be truly said that in acting as it did, this Republic was a century ahead of its time."
Early Twentieth Century American historian James Ford Rhodes wrote, "With a just feeling of pride may we honour the officials and citizens, the Republicans and the Democrats, who contributed to this grand result. For assuredly it was a sublime thing that, despite the contentious partisanship of the time, men bitterly opposed on almost every other question, could agree that the highest wisdom demanded that Davis be released from prison and that he be not punished or even tried; that those in control recognized what had hitherto been so little appreciated 'that the grass soon grows over blood shed upon the battle field, but never over blood shed upon the scaffold.'"
That said, there was another and, I suspect, equally potent issue. It had nothing to do with the number of Republicans on the Supreme Court or with long term thinking on the impact of executing ex-Confederates for treason. Instead it had to do with the United States Constitution's very restrictive clause on what constitutes treason and, even more important, where and how charges of treason must be tried: Article III, Section 2 provides "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed," and Section 3 states "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason." The Constitutional Convention had deliberately made it difficult to convict someone of treason, because of fears of abuse. In addition, Chief Justice John Marshall, sitting as a district court judge in Richmond (much like his successor, Taney, had done in ex parte Merryman) in the Aaron Burr trial had set very high standards, in Marshall's case to embarrass his political enemy, Thomas Jefferson.
There have only been a handful of treason trials in American history: several men involved in the Whiskey Rebellion in the 1790s were convicted but later pardoned. In ex parte Bollman, 8 US (4 Cr) 75 (1807), one of the Burr conspirators was freed because the indictment was in the District of Columbia and Bollman had not been there. Chief Justice Marshall ruled that the indictment and trial would have to be held where the alleged treason had actually occurred, not, to carry the argument to the Civil War, in Pennsylvania, because, even though the Army of Northern Virginia paid a visit, President Davis was never there. The Burr Trial, United States v. Burr, 8 US (4 Cr.) 469, Appx. (1807) ruled that Burr could not be convicted unless two witnesses testified to Burr's actual involvement. Since that was a secret conspiracy, there was no one to testify against Burr.
After 1807 it was World War II before there was another Treason Trial! Of the three, only two were upheld. In the United States treason is an extremely difficult crime to prosecute. Facing this issue, the Johnson Administration wanted the best legal counsel possible if it was to try any of the Confederate leadership. They appointed a sort of Special Prosecutor, a man most of us know for a very different reason: Richard Henry Dana, Jr. Many of us read, back in junior high, his classic sea story, Two Years Before the Mast. What we forget is that Dana wrote the book, not as an adventure story for boys, but as an expose on the conditions faced by the common seamen of the 1840s. After completing law school, Dana became a leading attorney defending the less fortunate, whether they were seamen abused by their captains or employers, or accused escaped slaves.
The first question in any post-war treason trial was, had Davis waged war against the United States? Obviously. Second, where had he waged war? Probably in Virginia. Perhaps in Montgomery.
Well, then, he would have to be tried in Virginia, in the United States District Court for the Eastern District of Virginia. This was the court which, sitting in Richmond, had indicted not only Davis, but also a number of prominent Confederates, including Robert E. Lee.
Now the rub: according to Article II, Section 2, Davis, and anyone else, would have to be tried in Virginia, before a jury of Virginians! Remember that no blacks would qualify for a jury, indeed, if would have been hard to empanel a jury, which did not contain either ex-Confederates or Confederate sympathizers. And Dana was very concerned about the ability of the Government to convince twelve Virginians that Davis had committed a crime.
Let Dana, in a letter to Attorney General W.M. Evarts on August 24, 1868, expressed his opinion why there should be no attempt to try Davis (and by extension, any other Confederate) for their activities during the War. The letter is a little long but I think it important to allow you to read all of it:
SIR,
While preparing with yourself, before you assumed your present post, to perform the honorable duty the President had assigned to us, of conducting the trial of Jefferson Davis, you know how much my mind was moved, from the first, by doubts of the expediency of trying him at all. The reasons which prevented my presenting those doubts no longer exist, and they have so ripened into conviction that I feel it my duty to lay them before you in form, as you now hold a post of official responsibly for the proceeding.
After the most serious reflection, I cannot see any good reason why the Government should make a question whether the late civil war was treason, and whether Jefferson Davis took any part in it, and submit those questions to the decision of a petit jury of the vicinage of Richmond at nisi prius.
As the Constitution in terms settles the fact that our republic is a state against which treason may be committed, the only constitutional question attending the late war was whether a levying of war against the United States which would otherwise be treason, is relieved of that character by the fact that it took the form of secession from the Union by state authority. In other words the legal issue was, whether secession by a State is a right, making an act legal and obligatory upon the nation which would otherwise have been treason.
This issue I suppose to have been settled by the action of every department of the Government, by the action of the people itself, and by those events which are definitive in the affairs of men.
The Supreme Court In the Prize Causes held, by happily a unanimous opinion, that acts of the States, whether secession ordinances, or in whatever form cast, could not be brought into the cases, as justifications for the war, and had no legal effect on the character of the war, or on the political status of territory or persons or property, and that the line of enemy's territory was a question of fact, depending upon the line of bayonets of an actual war. The rule in the Prize Causes has been steadily followed in the Supreme Court since, and in the Circuit Courts, without an intimation of a doubt. That the law making and executive departments have treated this secession and war as treason, is matter of history, as well as is the action of the people in the highest sanction of war.
It cannot be doubted that the Circuit Court at the trial will instruct the jury, in conformity with these decisions, that the late attempt to establish and sustain by war an independent empire within the United States was treason. The only question of fact submitted to the Jury will be whether Jefferson Davis took any part in the war. As it is one of the great facts of history that he was its head, civil and military, why should we desire to make a question of it and refer its decision to a jury, with power to find in the negative or affirmative, or to disagree? It is not an appropriate question for the decision of a jury; certainly it is not a fact which a Government should, without great cause, give a jury a chance to ignore.
We know that these indictments are to be tried in what was for five years enemy's territory, which is not yet restored to the exercise of all its political functions, and where the fires are not extinct. We know that it only requires one dissentient juror to defeat the Government and give Jefferson Davis and his favorers a triumph. Now, is not such a result one which we must include in our calculation of possibilities? Whatever modes may be legally adopted to draw a jury, or to purge it, and whatever the influence of the court or of counsel, we know that a favorer of treason may get upon the jury. But that is not necessary. A fear of personal violence or social ostracism may be enough to induce one man to withhold his assent from the verdict, especially as be need not come forward personally, nor give a reason, even in the jury-room.
This possible result would be most humiliating to the Government and people of this country, and none the less so from the fact that it would be absurd. The Government would be stopped in its judicial course because it could neither assume nor judicially determine that Jefferson Davis took part in the late civil war. Such a result would also bring into doubt the adequacy of our penal system to deal with such cases as this.
If it were important to secure a verdict as a means of punishing the defendant, the question would present itself differently. But it would be beneath the dignity of the Government and of the issue, to inflict upon him a minor punishment; and, as to a sentence of death, I am sure that, after this lapse of time and after all that has occurred in the interval, the people of the United States would not desire to see it enforced.
In fine, after the fullest consideration, it seems to me that, by pursuing the trial, the Government can get only a re-affirmation by a Circuit Court at nisi prius of a rule of public law settled for this country in every way in which such a matter can be settled, only giving to a jury drawn from the region of the rebellion a chance to disregard the law when announced. It gives that jury a like opportunity to ignore the fact that Jefferson Davis t ook any part in the late civil war. And one man upon the jury can secure these results. The risks of such absurd and discreditable issues of a great state trial are assumed for the sake of a verdict which, if obtained, will settle nothing in law or national practice not now settled, and nothing in fact not now history, while no judgment rendered thereon do we think will be ever executed.
Besides these reasons, and perhaps because of them, I think that the public interest in the trial has ceased among the most earnest and loyal citizens. If your views and those of the President should be in favor of proceeding with the trial, I am confident that I can do my duty as counsel, to the utmost of my ability and with all zeal. For my doubts are not what the verdict ought to be. On the contrary, I should feel all the more strongly, if the trial is begun, the importance of a victory to the Government, and the necessity of putting forth all powers and using all lawful means to secure it. Still, I feel it my duty to say that if the President should judge otherwise, my position in the cause is at his disposal."
President Johnson noted on the letter, "This opinion must be filed with care, A.J."
On the following Christmas, President Johnson issued an amnesty proclamation which included Davis, and, as a result, in the following February an order of nolle prosequi was entered, and Davis and his bondsmen were released.
[end]
There is no doubt whatever that Daviw and the rest were traitors to the United States. What is more, they were traitors to the future.
Walt
No, they moved south in order to split the colonies. That is the same reason they went up the Hudson Valley; to split New England from the other rebellious colonies. If the Brits had the northern colonies "wrapped up", they would have been as secure as Canada.
Walt
Thanks for all the great reads in your posts over the last few years. Merry Christmas.
Dana's letter specifically refers to Davis.
The fact that yes, clearly Lee DID wage war against the United States (along with every single one of his soldiers) in Pennsylvania only speaks to the point that the northerners were interested in magnaminity, not revenge.
Yes, every soldier who bore arms in the ANV on its 1863 raid into that state could have been hauled in chains bofore a jury of Pennsylvania men. And they might well all have been convicted of treason and hanged.
But as the point of the exercise was to reunite the country and go forward together, that would have been the worst possible thing.
But to say that the US government had no -case- in the matter of treason is simply wrong.
Perhaps the northerners were remembering Lincoln's words to Grant in the spring of 1865: "Let 'em up easy."
Walt
Documentation please.
Walt
Again, I am sorry if I gave offense. I happened across this "Pledge" thing, so I decided to post it.
Merry Christmas.
Walt
Nonsense. Take any three Southerners you want, and that includes IMHO the greatest American ever, George Washington, and they don't equal the contribution made to independence and our ultimate success as a nation made by John Adams.
Adams was the quiet force behind many of the achievements made by Washington, Jefferson and the other Virginians. He gave the Virginians all the opportunities they had for success because he understood that the nation could not succeed if Virginia were not just as involved in the struggle as New England. He willingly let others take the glory as long as the outcome fit his vision.
IMHO, Washington was the ‘Indispensable Man’ based on his character, courage and charisma. But John Adams was the giant behind the scenes who made it all happen. Adams made Washington CiC when New Englanders were already fighting the British and had better claims of the leadership of the military. Adams best friend, John Hancock who had already suffered much in the cause of independence sought command. Adams instead worked behind the scenes to assure Washington was selected to bring about sectional unity. The simple fact that Adams understood was that New Englanders would fight for freedom under any good leader. Virginians, being snobbish would only follow another Virginian. He understood that hidebound southern sectionalism and used it to his advantage. Jefferson gets credit for the Declaration of Independence, but it was Adams who wrote the first draft months before and kept it in his pocket wisely choosing not to openly push for a formal declaration until the ‘time was right.’ In June of 1776, with the largest naval armada ever assembled until that date approaching New York harbor, Adams made his move and offered his independence resolution to Congress. His arguments, all well laid out and designed to counter the opposition he knew he would receive, especially from the Southern contingents, carried the Congress. Adams selected the young Jefferson to write the final version, which minus Adams damnation of the King for fostering the slave trade, was for all intents and purposes the same document as Adam’s first draft but with more eloquent wording. Adams created the US Navy. He arranged the first European loans for America from the Dutch republic. He risked his life several times crossing the Atlantic in winter, taking up arms as a common Marine in attacking a British frigate, crossing the Pyrnes mountains in winter to get to Paris and solidify French support and all the while Jefferson stayed safe and warm with his slaves at Montecello.
Who contributed more? Jefferson was a man of words, many not even his own. Adams was a man of words and deeds. If you read more about him you will be in less awe of the Virginians and have a better understanding of the founders.
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