Richard Henry Dana, Jr. letter to Attorney General W.M. Evarts
"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" ["court of original jurisdiction"].
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 Cases 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 Cases 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 a 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 vavorer 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 took 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."
In the letter he clearly states that the law is clear that even under secession levying war against the United States is treason. But because they would have to try Davis in the jurisdictatin where he committed the crimes it would be very difficult to get a conviction. It would be as if we had captured General Suleimani, but had to try him in an are where only Qod Soldiers were in the jury pool.
Lincoln's "let them up easy policy" is the biggest disagreement I have with him. If I had been President then I would have tried Davis, Stephens, Lee, Longstreet, Breckenridge, and every confederate congressman, by a military tribunal then hanged them by the neck until dead.
With Lee in particular I would use his letter to his son as exhibit A of his willful treason.
Robert E. Lee to George Washington Custis Lee
Fort Mason, Texas, January 23, 1861.
I received Everett’s “Life of Washington” which you sent me, and enjoyed its perusal. How his spirit would be grieved could he see the wreck of his mighty labors! I will not, however,permit myself to believe, until all ground of hope is gone,that the fruit of his noble deeds will be destroyed, and that his precious advice and virtuous example will so soon be forgotten by his countrymen. As far as I can judge by the papers, we are between a state of anarchy and civil war. May God avert both of these evils from us! I fear that mankind will not for years be sufficiently Christianized to bear the absence of restraint and force. I see that four States have declared themselves out of the Union; four more will apparently follow their example. Then,if the Border States are brought into the gulf of revolution,one-half of the country will be arrayed against the other. I must try and be patient and await the end, for I can do nothing to hasten or retard it.
The South, in my opinion, has been aggrieved by the acts of the North, as you say. I feel the aggression, and am willing to take every proper step for redress. It is the principle I contend for, not individual or private benefit. As an American citizen, I take great pride in my country, her prosperity and institutions, and would defend any State if her rights were invaded.
But I can anticipate no greater calamity for the country than a dissolution of the Union. It would be an accumulation of all the evils we complain of, and I am willing to sacrifice everything but honor for its preservation. I hope, therefore, that all constitutional means will be exhausted before there is a resort to force. Secession is nothing but revolution. The framers of our Constitution never exhausted so much labor, wisdom, and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for “perpetual union,” so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled. It is idle to talk of secession. Anarchy would have been established, and not a government, by Washington,Hamilton, Jefferson, Madison, and the other patriots of the Revolution. . . . . Still, a Union that can only be maintained by swords and bayonets, and in which strife and civil war are to take the place of brotherly love and kindness, has no charm for me. I shall mourn for my country and for the welfare and progress of mankind. If the Union is dissolved,and the Government disrupted, I shall return to my native State and share the miseries of my people, and save in defense will draw my sword on none.
Here's an opposing, informed, view to consider:
Dear Dr. Scott:
Respecting your August 1 inquiry calling attention to my often expressed admiration for General Robert E. Lee, I would say, first, that we need to understand that at the time of the War between the States the issue of secession had remained unresolved for more than 70 years. Men of probity, character, public standing and unquestioned loyalty, both North and South, had disagreed over this issue as a matter of principle from the day our Constitution was adopted.
General Robert E. Lee was, in my estimation, one of the supremely gifted men produced by our Nation. He believed unswervingly in the Constitutional validity of his cause which until 1865 was still an arguable question in America; he was a poised and inspiring leader, true to the high trust reposed in him by millions of his fellow citizens; he was thoughtful yet demanding of his officers and men, forbearing with captured enemies but ingenious, unrelenting and personally courageous in battle, and never disheartened by a reverse or obstacle. Through all his many trials, he remained selfless almost to a fault and unfailing in his faith in God. Taken altogether, he was noble as a leader and as a man, and unsullied as I read the pages of our history.
From deep conviction, I simply say this: a nation of men of Lee’s calibre would be unconquerable in spirit and soul. Indeed, to the degree that present-day American youth will strive to emulate his rare qualities, including his devotion to this land as revealed in his painstaking efforts to help heal the Nation’s wounds once the bitter struggle was over, we, in our own time of danger in a divided world, will be strengthened and our love of freedom sustained.
Such are the reasons that I proudly display the picture of this great American on my office wall.
Sincerely,
Dwight D. Eisenhower
(Dwight D. Eisenhower was an American statesman and a five-star army general responsible for planning and supervising the Normandy invasion during World War II. He later served as the 34th President of the United States. He continues to be widely respected, though perhaps not by Col. Vindman.)
The constitution is clear that secession is a retained power in that there is no defined authority to suppress it. The constitution is also clear that the use of central government force to present secession is treason. Redefining secession as "rebellion" or "insurrection" makes the suppression any less treasonous.
The Lincoln gang committed treason when he declared martial law in Maryland, and prevented it from from seceding using federal troops.
Once it is understood that the entire constitution resides in Article I, Section 4, the interpretation becomes less cloudy. These are the clauses under which Lincoln committed treason:
"Article I, Section 3: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."
"Article I, Section 4: Republican government: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
[Constitution of the United States and Amendments." 1787]
The only way to settle that issue constitutionally is to revisit the debates leading up to Constitution, as Jefferson recommended, and conform to the interpretations at the time it was passed -- a concept that has been enshrined into law by all but the power-hungry and their groupies. This is Jefferson:
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."
[To Justice William Johnson, 1823, Monticello, June 12, 1823, in Thomas Jefferson, "The Writings of Thomas Jefferson Vol 15." Thomas Jefferson Memorial Association, 1903, p.449]
The alternative method of settling the issue is with the barrel of the gun – the method of choice by the power-hungry tyrant.
This is the "Father of the Constitution," James Madison, on secession:
"On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.
"That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution."
[James Madison, Federalist No. 39, in Bailey, Bill, "The Complete Federalist Papers." The New Federalist Papers Project, p.178]
"The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."
[Ibid. Federalist No. 45, pp.214-215]
So, according to Madison, the states retain sovereign power, and are bound to the Union only by a voluntary act. However, the general government is given a power to tax. If a state believes the tax system is over-burdensome, or unequally distributed, it is within the power of that state, and is even their duty, to secede. Without that power, and the exercise of that power, there is no check on the power of the central government. The federal government will have, by default, the power do anything it pleases in all cases whatsoever, rendering the Constitution null and void. I trust Jesus Christ with that kind of power, but no one else.
Mr. Kalamata