If Secession Was Illegal - then How Come...?

The Patriotist ^ | 2003 | Al Benson, Jr.

[Aurelius]

Over the years I've heard many rail at the South for seceding from the 'glorious Union.' They claim that Jeff Davis and all Southerners were really nothing but traitors - and some of these people were born and raised in the South and should know better, but don't, thanks to their government school 'education.'

Frank Conner, in his excellent book The South Under Siege 1830-2000 deals in some detail with the question of Davis' alleged 'treason.' In referring to the Northern leaders he noted: "They believed the most logical means of justifying the North's war would be to have the federal government convict Davis of treason against the United States. Such a conviction must presuppose that the Confederate States could not have seceded from the Union; so convicting Davis would validate the war and make it morally legitimate."

Although this was the way the federal government planned to proceed, that prolific South-hater, Thaddeus Stevens, couldn't keep his mouth shut and he let the cat out of the bag. Stevens said: "The Southerners should be treated as a conquered alien enemy...This can be done without violence to the established principles only on the theory that the Southern states were severed from the Union and were an independent government de facto and an alien enemy to be dealt with according to the laws of war...No reform can be effected in the Southern States if they have never left the Union..." And, although he did not plainly say it, what Stevens really desired was that the Christian culture of the Old South be 'reformed' into something more compatible with his beliefs. No matter how you look at it, the feds tried to have it both ways - they claimed the South was in rebellion and had never been out of the Union, but then it had to do certain things to 'get back' into the Union it had never been out of. Strange, is it not, that the 'history' books never seem to pick up on this?

At any rate, the Northern government prepared to try President Davis for treason while it had him in prison. Mr. Conner has observed that: "The War Department presented its evidence for a treason trial against Davis to a famed jurist, Francis Lieber, for his analysis. Lieber pronounced 'Davis will not be found guilty and we shall stand there completely beaten'." According to Mr. Conner, U.S. Attorney General James Speed appointed a renowned attorney, John J. Clifford, as his chief prosecutor. Clifford, after studying the government's evidence against Davis, withdrew from the case. He said he had 'grave doubts' about it. Not to be undone, Speed then appointed Richard Henry Dana, a prominent maritime lawyer, to the case. Mr. Dana also withdrew. He said basically, that as long as the North had won a military victory over the South, they should just be satisfied with that. In other words - "you won the war, boys, so don't push your luck beyond that."

Mr. Conner tells us that: "In 1866 President Johnson appointed a new U.S. attorney general, Henry Stanburg. But Stanburg wouldn't touch the case either. Thus had spoken the North's best and brightest jurists re the legitimacy of the War of Northern Aggression - even though the Jefferson Davis case offered blinding fame to the prosecutor who could prove that the South had seceded unconstitutionally." None of these bright lights from the North would touch this case with a ten-foot pole. It's not that they were dumb, in fact the reverse is true. These men knew a dead horse when they saw it and were not about to climb aboard and attempt to ride it across the treacherous stream of illegal secession. They knew better. In fact, a Northerner from New York, Charles O'Connor, became the legal counsel for Jeff Davis - without charge. That, plus the celebrity jurists from the North that refused to touch the case, told the federal government that they really had no case against Davis or secession and that Davis was merely being held as a political prisoner.

Author Richard Street, writing in The Civil War back in the 1950s said exactly the same thing. Referring to Jeff Davis, Street wrote: "He was imprisoned after the war, was never brought to trial. The North didn't dare give him a trial, knowing that a trial would establish that secession was not unconstitutional, that there had been no 'rebellion' and that the South had got a raw deal." At one point the government intimated that it would be willing to offer Davis a pardon, should he ask for one. Davis refused that and he demanded that the government either give him a pardon or give him a trial, or admit that they had dealt unjustly with him. Mr. Street said: "He died 'unpardoned' by a government that was leery of giving him a public hearing." If Davis was as guilty as they claimed, why no trial???

Had the federal government had any possible chance to convict Davis and therefore declare secession unconstitutional they would have done so in a New York minute. The fact that they diddled around and finally released him without benefit of the trial he wanted proves that the North had no real case against secession. Over 600,000 boys, both North and South, were killed or maimed so the North could fight a war of conquest over something that the South did that was neither illegal or wrong. Yet they claim the moral high ground because the 'freed' the slaves, a farce at best.

[nolu chan]

[capitan refugio] With regard to the original premise of this thread, I am surprised that no one has mentioned that, following the proposal and approval of the 14th Amendment, specifically Section 3 - which provided for the punishment of rebels such as Davis, Chief Justice Salmon Chase opined that a civil trial of Davis would amount to double jeopardy.

It has been covered in other threads, but I will oblige and cover it again.

[capitan refugio] Trying Davis in a Virginia civil court would have been about as useful as trying O.J. Simpson in downtown Los Angeles. It wasn't the case that there were no grounds to put him on trial, but rather, political events had caught up with the circumstances, and a Constitutional Amendment was already in place.

Their legal experts advised them that the case would be lost. The government had a dismal record in civilian courts. It failed to convict John Surratt who walked free. There was also Ex Parte Milligan.

Chief Justice Chase: "If Jefferson Davis be brought to trial it will convict the North and exonerate the South."

Charles O'Conor: "Rawle's 'View of the Constitution' and Bledsoe's 'Is Davis a Traitor?', would have won the case without further testimony had it come to trial."

Benjamin Janin Sage: "Another event of great historical interest, in which Judge Clifford participated, was the solemn consultation of a small number of the ablest lawyers of the north, at Washington, a few months after the war, upon the momentous question as to whether the federal government should commence a criminal prosecution against Jefferson Davis for his participation and leadership in the war of secession. In this council, which was surrounder at the time with the utmost secrecy, and which has never yet been described, were U. S. attorney-general Speed, Judge Clifford, William M. Evarts, and perhaps a half a dozen others, who had been selected from the whole northern profession for their legal ability and acumen; and theresult of their deliberation was the sudden abandonment [of the idea of prosecution], in view of the insurmountable difficulties in the way of getting a final conviction, which were revealed by their patient study of the law bearing upon the case."

"The Life and Public Services of Salmon Portland Chase"
by J.W. Schuckers, 1874
D. Appleton and Company, New York
Reprinted by Menmosyne Publishing Co., Inc. Miami, Florida
Library of Congress Catalog Card Number 73-89432
Page 534

Shortly after he was captured in May 1865, Davis was indeed indicted in the District of Columbia for high treason. It soon became evident that Davis had not committed any treason in DC and that indictment was dropped due to lack of jurisdiction.

Davis was then indicted in Virginia and did spend time in prison as stated. However, that indictment was NOT for treason. The indictment of Davis in Virginia was found under the act of Congress of July 17, 1862.

He was accused of participating in acts of rebellion on June 15, 1864 in the city of Richmond, county of Henrico, District of Virginia.

Judge Field, of the U.S. Supreme Court, (in the Chapman case, determined at San Francisco), held that participation in rebellion after the passage of that act, as was charged against Davis, was punishable by a fine not exceeding 10 thousand dollars, or imprisonment not exceeding ten years, or both.

"When in the Course of Human Events," by Charles Adams, p. 188, relates that,

"in February 1868, at a dinner party attended by the Chief Justice and an attorney for the government, it was agreed that on the following day a motion for nonprosecution would be made that would dismiss the case.

"A guest overhead the conversation and reported what was on the minds of most Southerners: 'I did not consider that he [Davis] was any more guilty of treason than I was....'"

http://jeffersondavis.rice.edu/faqs.cfm

"In an unusual twist, Chase made known to Davis' attorneys, a distinguished group of northern and southern litigators, his opinion that the third section of the 14th Amendment nullified the indictment against Davis. His contention was that by stripping the right to vote from high Confederate officials, a punishment for treasonable activities had been legislated, so Davis could not be punished again for the same crime.

* * *

"Chase's anger with Underwood was obvious, and he stated for the record why he believed the 14th Amendment exempted Davis from further prosecution."

http://odur.let.rug.nl/~usa/B/spchase/chase05.htm

"When Chase finally sat at the Davis trial in November 1868 he approved Davis' lawyer's argument that the 14th Amendment that had recently gone into effect applied to Davis."

Judge David Davis: "Mr. Lincoln was advised, and I also so advised him, that the various military trials in the Northern and Border States, where the courts were free and untrammelled, were unconstitutional and wrong; that they would not and ought not to be sustained by the Supreme Court; that such proceedings were dangerous to liberty."

[GOPcapitalist]

The Court has ruled, in several cases, that the president -can- suspend the Writ.

Quote them.

[4CJ]

Many of the States in rebellion were not able to resume normal civil functions for some time. It varied from state to state, and I don't have my references with me to look up when Virginia was "reconstructed."

Nonsense. The 13th Amendment was proposed on 31 Jan 1865, it was incorporated into the Constitution when Georgia, the 27th state to ratify, acceded on 6 Dec 1865.

If I am not mistaken, when Davis bailed out in 1867, he left the country for Canada, and then went to Europe. I am not sure if that is consistent with demanding a "speedy trial."

Davis' being bonded out in part by Republican abolutionists (Horace Greely among others) is not indicative of lack of demand for a speedy trial. Several prominent Northern jurists desired to represent Davis, and he had arrangements with the court which gave him 60 days notice whenever his presence was required in court.

But consider these words by Gerrit Smith, noted abolitionist, and one of those bonding Davis:

'My first reason for signing the Bond was that Mr. Davis was entitled either to his trial or to his liberty. That the prisoner should have a speedy trial is a general proposition, which no one combats. There may have been sufficient reasons for unusual delay in trying Mr. Davis: - hardly, however, for a delay of two years. But not even then was there willingness to try him then : - and this, too, notwithstanding Mr. Davis had, all this time, been urgent for his trial.'

Davis was ready willing and able to stand trial. The government invented excuses to prevent a trial from happening, until ex post facto punishments gave Chase et al an excuse.

As an aside, Smith also had the following comments

'I have ever held that a sufficient reason why we should not punish the conquered South is that the North was quite as responsible as the South for the chief cause of the War. The North did quite as much as the South to uphold slavery: - and let me add that she did it more wickedly ... Slavery was the evil inheritance of the South - but the wicked choice, the adopted policy, of the North ... The unfortunate South felt that she must take slavery for better or for worse, for gain or for loss. But the mercenary North coolly reckoned the political, commercial and ecclesiastical profits of slavery, and held to it.'

[4CJ]

The whole time Jefferson Davis was imprisoned, all he had to do to get out was ask for a pardon, thereby recognizing Andrew Johnson as President of the United States. Robert Lee did so immediately after Appomattox, but Davis remained stubbornly treasonous.

Sorry, but refusing to request a pardon has never been a treasonable offense. President Davis adamantly refused a pardon and restoration of US citizenship, agreeing in principle with George Washington who told the British that 'that they who had committed no fault wanted no pardon'.

[4CJ]

Blaming Lincoln and the Radical Republicans for what hapened to Jefferson Davis is ridiculous.

Slowly read what I wrote: 'The government had three years to present an open-and-shut case. Despites Davis' insistance for a speedy trial, they found excuse after excuse, knowing that a jury trial would find Davis innocent, and condemn Lincoln and the radical Republicans.'

I never BLAMED Lincoln & the radical Republicans for what happended to Davis, I stated that a jury trial would CONDEMN them.

[4CJ]

Another falsehood. There was no "Secession" from the Articles but rather the implemention of Congress's call for a convention.

Wrong. The Articles LEGALLY required unanimous consent for changes by all 13 parties. The Constitution was created by the ratificiations of 9 states.

9 is LESS than 13, and always will be. But if you insist, please provice documentary evidence that ALL 13 states formally terminated the Articles.

[capitan_refugio]

Gerrit Smith was an interesting character. On one hand he finances John Brown's attempt to foment a slave revolt (an incident leading to increased tensions between North and South and a precursor to Civil War), and on the other hand he slaps the North around for following through on his abolitionist principles. Smith is generously called a "social reformer" by history. In fact, he was simply a contrarian. He would have made a good "talking head" on some of the Sunday news/opinion shows.

[nolu chan]

[justshutupandtakeit] Another falsehood. There was no "Secession" from the Articles but rather the implemention of Congress's call for a convention.

No. They did NOT implement Congress's call for a convention. They far exceeded their authorized purpose which was, "for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions," as they may choose to recommend.

They scrapped the entire existing Constitution contrary to their mandate. They made the new Constitution effective upon the ratification of 9 states, in violation of Articles 6 and 13.

When 9 states had ratified, they did NOT immediately shift to the new form of government. Lacking the support of New York and Virginia, it was not yet time to say might makes right. Once NY and VA ratified, then it was time for 11 states to tell NC and RI goodbye.

George Washington was inaugurated and the new nation went into effect without NC or RI. Rhode Island held out for over a year.

Between the time George Washington was inaugurated, and Rhode Island ratified, what union existed and who was in it?

The government under the Articles of Confederation had dissolved. Rhode Island was not a state in the new government.

Eleven states simply left the Articles of Confederation in Perpetual Union behind, in direct violation of the terms of that compact. That compact provided that not one word of it could be changed without the consent of Rhode Island (and all the other states).

Eleven states did not issue declarations of secession. They simply did it. The second article said each state retained its sovereignty. Eleven states acted as sovereigns and left the existing compact. They seceded.

Report of Proceedings in Congress; February 21, 1787

"Whereas there is provision in the Articles of Confederation & perpetual Union for making alterations therein by the assent of a Congress of the United States and of the legislatures of the several States; And whereas experience hath evinced that there are defects in the present Confederation, as a mean to remedy which several of the States and particularly the State of New York by express instructions to their delegates in Congress have suggested a convention for the purposes expressed in the following resolution and such convention appearing to be the most probable mean of establishing in these states a firm national government.

"Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union."

Articles of Confederation in Perpetual Union

Article 2

Each state retains its sovereignty...

Article 6

No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

Article 13

Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

[capitan_refugio]

To go back to my first point. I recall that Tennessee was re-admitted to the Union in 1866. After 1866, the moderate Reconstruction advocated by Lincoln was replaced with the so-called "Radical Reconstruction." Ten deep south States were divided into 5 military districts. During the period of 1868-1870, the remaining rebel states were re-admitted to the Union; all with the provision that they ratified the 14th Amendment.

During the Radical Reconstruction, several facets of the Southern States' governments were changed. Ex-slave and freeman sufferage was enforced. Public schools were introduced. Courts were reorganized and judicial procedures improved.

I recall, that in Southern States, for some time, and it varies by state, the US Army ran the courts. Even after the surrender by the Southern armies and the capture of a number of high ranking CSA officials, the legal suspension of habeas corpus continued; ergo, they were held with out need for charges or bail. The key question, with regard to Jefferson Davis' trial, is when were Virginia civil courts allowed to resume? Or, when were the Federal Courts re-established in the State of Virginia. (I don't think Mr. Davis would have been keen on being tried by a military tribunal.) Operation of the courts has nothing to do with electing representatives to Congress and the state legislatures. Therefore, your response "Nonsense" is premature and unsubstantiated.

I am sure you have several Davis references which might shed light on the issue, specifically. Thanks.

[capitan_refugio]

"In an unusual twist, Chase made known to Davis' attorneys, a distinguished group of northern and southern litigators, his opinion that the third section of the 14th Amendment nullified the indictment against Davis. His contention was that by stripping the right to vote from high Confederate officials, a punishment for treasonable activities had been legislated, so Davis could not be punished again for the same crime."

I think the this is what I had said, and what you quoted in the first paragraph of your post> Am I wrong?

Judge David Davis: "Mr. Lincoln was advised, and I also so advised him, that the various military trials in the Northern and Border States, where the courts were free and untrammelled, were unconstitutional and wrong; that they would not and ought not to be sustained by the Supreme Court; that such proceedings were dangerous to liberty."

I think I also indicated in a previous post that military courts operated in the south until the ex-rebel states' courts could be "reconstructed." Thank you for the documentation.

[nolu chan]

[capitan refugio] The key question, with regard to Jefferson Davis' trial, is when were Virginia civil courts allowed to resume? Or, when were the Federal Courts re-established in the State of Virginia.

Mi capitan,

I think they tried to avoid saying any of the states was "re-admitted." It was denied that they had been able to leave. (But I seem to recall that Texas was annexed and re-annexed somehow.)

The answer to your question appears to be August 20, 1866.

Virginia was in the circuit of Chief Justice Chase. (There were no district courts back then.) CJ Chase refused to hold any proceeding in Virginia until martial law had been completely relinquished. He refused to even hold a bail hearing for Davis.

The Life and Public Service of Salmon P. Chase, by Shuckers, p. 543:

"It was not until June, 1867, that the Chief Justice held a court in any one of the insurgent States, and then at Raleigh, in North Carolina. He stated at the opening, and before proceeding with the ordinary business of the court, that the military control over the civil tribunals had been withdrawn by the President, and that the writ of habeas corpus, which had been suspended, was restored. This was mostly effected by the President's proclamation of April, 1866, and finally by the proclamation of August 20th subsequent. These proclamations, he said, reinstated the full authority of the national courts in all maters within their jurisdiction."

On page 540-1, Shuckers quotes Chase (from a letter to Shuckers):

"I have held three terms of the Circuit Court in and for the District of Maryland since my appointment, now nearly two years ago. There were indictments for treason pending at the first term, and, except in certain cases where the accused has been pardoned, they are pending yet. But the Government has not yet thought proper to proceed to trial in any of these cases. If the Government had desired a judicial exposition of the law of treason, it might have been had, so far as I was able to to give it, at either of these terms; in April and November, 1865, or in April, 1866...."

"I held no court in Virginia in 1865, because the writ of habeas corpus was suspended and martial law enforced within its territory; and in my judgment all courts in a region under martial law must be quasi-military courts; and it was neither right nor proper that the Chief-Justice or any justice of the Supreme Court of the United states -- the highest tribunal of the nation, and the head of one of the coordinate departments of the government -- should hold a court subject to the control or supervision of the Executive Department, exercising military powers. In this opinion I believe all lawyers of reputation, of whatever political opinions, concur."

[capitan_refugio]

"Davis was ready willing and able to stand trial. The government invented excuses to prevent a trial from happening, until ex post facto punishments gave Chase et al an excuse.'

Section 3 of Amendment XIV says (in so many words) that, if you were involved in the "insurrection of rebellion" against the United Stated, or if you gave "aid or comfort to the enemies" of the United States, you were prohibited from holding any civil or military office in any state or in any part of the Federal Government.

Section 4 says that the United States will not honor "any debt or obligation incurred in aid of insurrection or rebellion against the United States" and that "all such debts, obligations, and claims shall be held illegal and void."

Speaking philosophically, war is essentially a political action. It is rarely a judicial one. The "re-union" of the nation was a political process. Section 4 of Amendment XIV disavows the actions of the rebelious States and their supporters. Section 3 prohibits the rebels and their supporters from being part of future governments. (Of course their were presidential pardons to be had too.) These are political actions that represent the will of the winning side.

Let me quote from Grant's memoirs:

"Now, the right of revolution is an inherent one. When people are oppressed by their government, it is a natural right they enjoy to relieve themselves of the oppression, if they are strong enough, either by withdrawal from it, or by overthrowing it and substituting a government more acceptable. But any people or part of people who resort to this remedy, stake their lives, their property, and every claim for protection given by citizenship - on this issue. Victory, or conditions imposed by the conqueror - must be the result."

It didn't really matter if Davis was tried in court or not. He was already a loser. The politics of the North were to mete out the punishments. Jefferson Davis did not have any rights. He was a rebel and had lost his citizenship. He never even bothered to reclaim it. In reality, after 1865, Jefferson Davis had become the first "Monday morning quarterback."

[nolu chan]

I think the this is what I had said, and what you quoted in the first paragraph of your post> Am I wrong?

You are correct. I was only adding documentation to support the point.

[capitan_refugio]

Thank you for finding that information.

I think my recollection of US History courses in college 25 years ago was reasonably accurate. I find Chase's reasoning interesting ... viz. "I'm not going to take part in any military or quasi-military trials, because I am in a differnet branch of government! Let me know when you clear out!"

By the way, is Shuckers book on chase still in print? Sounds interesting.

[capitan_refugio]

Oops. I see now in your previous post that the book was published in 1874! I don't think I'm going to find it on Amazon.com!!!!! ;^)

[Grand Old Partisan]

Can't you ever admit a mistake? You are being condescending toward me to cover for your ignorance of American history.

The Radical Republicans were few in number and had hardly any influence at all until nearly two years after the Civil War ended, with the passage of the March 1867 Reconstruction Act, enacted largely in reaction to how brutally the ex-rebel Democrats in charge of the postwar South were treating the blacks and white Unionists. So, your assertion that a trail of Jefferson Davis was not held for fear of condemning the Radical Republicans is ridiculous. In any case, the decision of whether to put Jefferson Davis on trial was taken by a man who hated the Radical Republicans, Democrat President Andrew Johnson.

[Grand Old Partisan]

"The 13th Amendment was proposed on 31 Jan 1865, it was incorporated into the Constitution when Georgia, the 27th state to ratify, acceded on 6 Dec 1865.:

THAT is nonsense as a resonse to when Virginia was reconstructed. Virginia was not reconstructed, compeltely, until the state government was re-admitted to the Union, in 1870.

[Grand Old Partisan]

Sorry, that you agree with Jefferson Davis, and not with the United States Government.

[Grand Old Partisan]

JSUATI made an excellent point -- that with the Constitution the United States changed its form of government, not became a new nation. Prior to ratification, no state ever asserted its independence from the Union or even claimed to be independent. The Confederate attempt at independence was completely different.

[Grand Old Partisan]

Yes, Gerritt Smith proved to be a crank.